Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench comprising of Prashant Kumar Mishra and Gautam Chourdiya, JJ.,  dismissed an application for “condonation of delay in filing acquittal appeal” on finding no satisfactory explanation for a delay of almost thirteen and a half years.

The present application was filed for condonation of delay in filing the acquittal appeal. The appeal was against the acquittal of respondents 2 to 14 from the charge under Sections 302, 147, 148/149, 452, 325, 323 and 427 of Penal Code, 1860 rendered by Additional Sessions Judge vide its judgment is barred by a delay of 5010 days – more than thirteen and a half years.

Appellant in the present matter is the wife of the deceased who was done to death by 16 accused persons including respondents 2 to 14. Trial Court acquitted the present 13 respondents and convicted only 3 of them.

Counsel for the appellant, Ashok Varma submitted that no period of limitations is prescribed for filing appeal under Section 372 of CrPC, therefore, family members of the victim/deceased are entitled to file an appeal at any point of time. Further added that, the appellant had valid and sufficient reasons for not preferring the appeal within a reasonable time as after the date of the incident, the accused persons were threatening the appellant and other members of the family to leave the village otherwise they will meet the same fate like deceased.

Counsel for the appellant to support his contention relied on the case of Mithilesh Yadav v. State of Chhattisgarh, ACQA No. 96 of 2012 & Dineshbhai Makwana v. State of Gujarat, 2013 Cri.L.J. 4225.

Learned Panel Lawyer, Avinash Choubey representing the State, Counsel Anjinesh Shukla, representing the respondents 2 to 14 vehemently opposed the prayer fro condonation of delay. They contended that the appellant has suddenly decided to file an appeal for no reason, therefore, the present is a case where the appeal deserves to dismissed either as barred by limitation or on the ground of delay and laches.

Held

The High Court, in view of the stated facts and submissions, stated that three accused who have been found to be the real perpetrators were convicted by the trial court, therefore, there does not appeal to be any real or tangible threat to the appellant or her family members. Moreover, no complaint or report was annexed with the application in support of the submission that there was threat extended to the appellant or her family members.

Taking in reference to the case relied upon the counsel for the appellant, i.e. Mithilesh Yadav v. State of Chhattisgarh, ACQA No. 96 of 2012, it was stated that

“Even if no period of limitation is prescribed under Section 372 CrPC an appeal against acquittal has to be preferred with reasonable time from the date of knowledge.”

Court noted that, counsel for appellant fairly submitted that the appellant was aware of the judgment soon after its delivery as respondents 2 to 14 started threatening the appellant soon after the judgment.

Thus, the Court in view of the above submitted that the appeal should have been filed within 90 days after the impugned judgment. The present is a case where the delay is not of a few months, but the delay is of almost more than 13 and a half years. Court added to their decision that, there is no satisfactory explanation for causing such enormous delay in filing the acquittal appeal.

Hence, the instant acquittal appeal on grounds of unexplained delay and laches is dismissed.[Anand Mati Yadav v. State of Chhattisgarh, 2019 SCC OnLine Chh 92, decided on 03-09-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Akil Kureshi and S.J. Kathawalla, JJ. addressed the petition filed by NDTV challenging orders passed by Securities Exchange Board of India (SEBI). Orders passed by SEBI pertained to the rejection of applications filed by NDTV for condonation of delay in filing settlement applications.

Facts pertaining to the present case

SEBI had initiated adjudication proceedings against the petitioner. The ‘first show-cause notice’ dated 12-02-2015 alleged violation of Clause 36 of Listing Agreement on the ground that there was non-disclosure of a tax demand of Rs 450 Crores which was raised under an assessment order against the Company for the assessment year 2009-2010.

04-03-2015 – Petitioner filed reply contending that he was under legal advice and bonafide belief that the tax demand was not required to be reported under Clause 36 of the Listing Agreement.

04-06-2015 – SEBI passed order holding the petitioner liable for the violation of Clause 36 of Listing Agreement and imposed a penalty of Rs 25 lakhs under Section 23-A of the Securities Contracts (Regulation) Act, 1956.

23-07-2015 – Petitioner filed an appeal against the above-stated order of SEBI before SAT, Mumbai.

28-08-2015 – SEBI issued ‘second show-cause notice’ against the company and its directors and key managerial personnel in which the allegations included non-disclosure of tax demand of Rs 450 Crores, delayed disclosure of certain sale of shares by KVL Narayan Rao, Group CEO and Executive Vice-Chairman and delayed disclosure by the petitioner under the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992.

08-06-2016 – SEBI issued the ‘third show cause notice’ alleging the petitioner for violation of certain provisions of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.

Contentions

Petitioner stated that there was no contravention of non-disclosure of tax demand which was the main subject matter of the first and second show-cause notices. In regard to the allegations in the third show cause notice, the petitioner stated that it could trace the proof of some of the disclosures but could not trace the proof of the rest. Under the circumstances, without conceding to the correctness of the allegations made, the petitioner took a decision to seek settlement of all three cases.

21-03-2017 – Petitioner filed settlement application with respect to the first and second show-cause notices.

24-07-2017 – In respect to the third show-cause notice, the settlement application was filed.

15-05-2017 – Petitioner filed an application for condonation of delay in filing settlement application dated 21-03-2017. Further, it was stated that the settlement application was re-presented on 26-09-2017 confined to the second show-cause notice.

Additionally to the above contentions, counsel for the petitioner stated that:

  • No personal hearing was granted.
  • Impugned orders are non-reasoned orders, due to no reasons being cited for rejection of delay of condonation
  • Petitioner made out sufficient grounds for condoning the delay.
  • Delay in view of the statutory provisions should be construed liberally. SEBI committed a serious error in not entertaining settlement applications on merits simply rejecting on the ground of delay.

Counsel for SEBI opposed the petition contending that the delay in both the cases was substantial which was not satisfactorily explained. SEBI considered the applications on merits and recorded that for want of satisfactory reasons, delay cannot be condoned. Orders, therefore cannot be termed as unreasoned orders.

Conclusion

The High Court perused relevant statutory provisions, i.e. Securities and Exchange Board of India Act, 1992 and SEBI (Settlement of Administrative and Civil Proceedings) Regulations 2014.

With the stated statutory framework in mind, Court perused the relevant documents on record. Further perusal of both the impugned orders suggested that the Board had not cited any reasons for rejecting the respective obligations of the petitioner for condonation of the delay. “Mere statement that the panel of whole-time members did not find the reason given as sufficient would not constitute proper reasons for dealing with the applications.”

“Facts and grounds stated in both the delay condonation applications were different. However, both the applications met with the same response from the Board. Citing identical one line consideration both applications were rejected. It ought to have been appreciated that the result of the rejection of delay condonation applications would be to terminate respective settlement applications without consideration on merits.”

Court stated that the Board committed a serious error in rejecting both the applications for condonation of delay.

Court further added that, “In the present case, we are not inclined to express any conclusive opinion with respect to the right of an applicant of settlement application to be heard in person at the stage where application for condonation is being decided by the Board.”

Thus, the Court set aside both the impugned orders and the applications for condonation of delay stood allowed. [NDTV v. SEBI, 2019 SCC OnLine Bom 1772, decided on 04-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Nandita Dubey, J., allowed the petitioner to file a fresh application for bringing in legal representatives along with an application for condonation of delay and an application for setting aside abatement before the trial court.

The plaintiffs filed an application under Order 22 Rule 3 CPC for bringing the legal representatives of the other deceased plaintiff Naeem Khan on record and it was dismissed. The arguments put forth by the petitioners were that they are “rustic and illiterate villagers” who could not contact and inform the counsel within the time for bringing the legal representatives on record. Further, the suit was initially filed before the Civil Court Balaghat but later on shifted to Lanjhi, which added further trouble to the applicants. Due to this reason, they were not able to contact the counsel and there was a delay in the application for substitution of legal representatives. However, by oversight, the application for setting aside abatement and condonation of delay was not filed.

The trial court, considering that the application under Order 22 Rule 3 of CPC was filed with a delay of nearly four months and no application for setting aside abatement and condonation of delay was filed, dismissed their application.

The Court concurred with the arguments put forth by the petitioners and relied on the decision rendered in the case of Rama Ravalu Gavade v. Sataba Gavadu, (1997) 1 SCC 261. Since the applicants were “rustic and illiterate people” and the delay was only of four months, the Trial Court should not to have adopted the hypertechnical approach and should have granted an opportunity to the applicants to file the application for condonation of delay and for setting aside abatement in the interest of justice. The Trial Court, therefore, was not right in outrightly dismissing the application of applicants. They allowed the petition and set aside the order passed by the Trial Court. The petitioners were granted liberty to file a fresh application for bringing the legal representatives along with an application for condonation of delay and an application for setting aside abatement before the Trial Court.[Naseema Begum v. Mohd. Rajik Nazmi, 2019 SCC OnLine MP 2255, decided on 28-08-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. disposed of the revision petition saying that the Court did not find any ground to condone such delay of over eleven years as there was absolutely no explanation that came from the petitioners.

The petitioners approached the Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973, challenging the judgment dated 11-09-2006 passed in Criminal Appeal No. 41 of 2004, by the Additional Sessions Judge, FTC-II, Khagaria which upheld the judgment passed by the Additional Chief Judicial Magistrate, Khagaria in GR No. 726 of 1996.

The limitation for filing the present Revision Application had expired on 10-12-2006. The limitation was not condoned though the application was admitted for hearing as the application was filed defect free. The learned counsel for the petitioners submitted that being labourers, they had gone out of the State to earn their livelihood as the case filed was under bailable sections. The Counsel for the petitioners submitted that due to local rivalry, they have been falsely implicated and that the injuries were simple in nature.

After considering the averments made in the Interlocutory Application, the Court found that there was absolutely no explanation for such unexplained and inordinate delay of over 11 years except the fact that the case was filed under bailable sections, and under the garb of such reasoning the petitioners had gone outside the State for earning their livelihood and did not know about the present case and only after warrant was issued on 08.02.2018, they had taken steps for filing the present revision application.

The Court further held that the petitioners after lodging of the case had gone outside the State and had no knowledge about further proceeding is patently false, for the reason, that after the conviction, an appeal was filed on their behalf which has also stood dismissed. Thus, the conduct of the petitioners denotes sheer casualness on their part.

The Court found that the judgment passed by the trial Court as well as the Appellate Court was sound, and based on properly appreciated evidence. Thus, it does not find any ground to exercise its revisional jurisdiction. However, after taking into account the fact that the dispute arose due to grazing of cattle and the injury suffered was simple in nature, the Court held that since the petitioners had already undergone incarceration for over five months, the sentence needed to be modified.

In view of the above-noted facts, the instant petition was disposed of accordingly without interfering with the order of conviction but modifying the sentence of imprisonment to the period already undergone. [Bhagwan Yadav v. State of Bihar, 2019 SCC OnLine Pat 1490, decided on 29-08-2019]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J. allowed an application whereby the State of Goa sought condonation of 156 days’ delay in filing the appeal against the acquittal of the accused-respondent.

S.R. Rivankar, Public Prosecutor, appearing for the State, submitted that as per the opinion was given by the Director of Prosecution, the impugned order passed by the Magistrate was challenged before the Sessions Judge along with an application for condonation of delay. It was objected to by the respondent as regards its maintainability before the said Court. Consequently, the prosecution moved an application for withdrawal of the appeal on with liberty to file the said appeal before the High Court. The Sessions Judge on the same day permitted the prosecution to withdraw the appeal. Thereafter, the file was circulated in the Department and the matter was finally allotted to the Public Prosecutor. As such, it was contended that the State was prosecuting its remedy with due diligence before a wrong forum, inadvertently, and therefore, the delay need be condoned.

Per contra, H. Gopi, Advocate for the respondent stated,  that there was no sufficient cause for condonation of delay, as the prosecution was required to explain delay before each and every officer which had gone unexplained. It was submitted that the respondent had accrued valuable rights in his favour on account of the acquittal granted by the Magistrate and, therefore, that right cannot be taken away lightly.

The High Court was of the opinion that the State had shown sufficient cause to condone the delay. Perusing Section 470 CrPC that provides for exclusion of time in certain cases, it was observed: “It appears that due to an incorrect opinion given by the Director of Prosecution, the State was prosecuting the remedy before a wrong forum. It was indeed with due diligence and bonafide as per Section 470 CrPC, and hence, such a period needs to be excluded while computing the period of limitation. Sufficient cause has been shown by the prosecution for condonation of delay, however, it cannot be lost sight of the fact that the respondent is put to some hardship due to the said delay which needs to be adequately compensated.”

Resultantly, the delay of 156 days in filing the appeal was condoned subject to costs of Rs 3000 to be paid to the respondent.[State of Goa v. Natividade Nazario Fernandes, 2019 SCC OnLine Bom 1703, decided on 27-08-2019]

Case BriefsHigh Courts

Armed Forces Tribunal (AFT): Justice S.V.S. Rathore (Member) and Air Marshal BBP Sinha (Member) dismissed an application by the applicant under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was enrolled in the Army in 1984 in a medically fit condition and was invalidated out from service in 1985 in low medical category EEE by the Medical Board for “Tuberculosis Lymphadenitis” which considered the disability at 100% for a period of 2 years. The applicant was brought before Review Medical Boards in the subsequent years in which his disability was assessed at 80%, 60% and 20% and thus disability pension continued till 1993. In the year 1993, the applicant was brought before Review Medical Board and the medical board assessed the disability to be between 6 to 10% (less than 20%) for a period of 10 years and on the recommendation of the medical board, pension sanctioning authority stopped disability pension from 1993 to 2003. The next RSMB could not be carried out as the applicant did not report to the medical authority till 2008 despite repeated reminder by Records. His disability was assessed at 20% for life and accordingly, he was in receipt of the disability pension from 2008.

The applicant argues that based on the facts mentioned above, he is entitled to disability pension for the period from 1993 to 2008 also and thus, the action of the respondents stopping the disability pension of the applicant from the said dates is against the principles of natural justice.

The respondents argued that since the disability of the applicant from 1993 was re-assessed as less than 20% for 10 years by pension sanctioning and adjudicating authority (PCDA), it was stopped. The next RSMB in 2003 of the applicant was not be carried out as he did not report to the medical authority despite repeated reminders. Eventually, when the applicant reported, his disability was assessed at 20% for life and accordingly his pension was rounded off to 50% for life. Hence, the applicant is not entitled to arrears of disability pension for the period from 1993 to 2008 because his disability was less than 20% as per Regulation 173 of Pension Regulations for the Army 1961 (Part-I) and secondly for not taking any initiative to appeal, represent or appear for 2003 RSMB.

The applicant approached the Tribunal in 2017 by filing an application for grant of disability pension from 1993 to 2008. The Tribunal relied on Shiv Dass v. Union of India, (2007) 9 SCC 274 where the Supreme Court held that arrears of disability pension are restricted to three years prior to the filing of the application if the same has been filed belatedly and delay is condoned. Since the applicant approached the Tribunal after elapse of more than 11 years, he is not entitled to any arrears due to the law of limitations.[M Radha Raman Shukla v. Union of India, 2019 SCC OnLine AFT 3893, decided on 15-07-2019]

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Vijai Kumar Bist, CJ and Meenakshi Madan Rai, J. dismissed a writ petition filed against the order of the Commissioner of Customs, Central Excise and Service Tax (Appeal I) whereby he had rejected the application for condonation of delay filed by the petitioner along with an appeal from the order of the Joint Commissioner imposing service tax, interest and penalty under provisions of the Finance Act, 1994, on the petitioner.

In the said application for condonation of delay, no efforts were made by the petitioner to explain the delay from 15-08-2015 till 7-10-2016 (the date of filing the appeal before the Commissioner). While rejecting the application, the Commissioner recorded that the reasons for delay assigned by the petitioner were flimsy, and the period delay was also calculated irresponsibly and inaccurably.

Sourav Sen and Rupa Dhakal, Advocates for the petitioner Cooperative Society submitted that the case be considered on merits to subserve the ends of justice. Per contra, B.K. Gupta, Advocate appearing for the Commissioner, supported the impugned order.

The High Court noted that the application for condonation of delay reflected a lackadaisical approach on the part of the petitioner. It was observed: We are conscious and aware that the law of limitation is sufficiently elastic to allow and enable the concerned Authorities to apply it for substantial justice, but at the same time it may be mentioned that merely because a non-pedantic approach should be adopted to an application for condonation of delay it is not essential that every delay including those in which the drafting has been done in a haphazard manner and with nary a care to detail or explanation pertaining to the delay with dates thereof be condoned.”

Reference was made to Supreme Court decision in Esha Bhattacharjee v. Raghunathpur Nafar Academy,(2013) 12 SCC 649, wherein it was, inter alia, held that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

In such view of the matter, the Court was of the opinion that the impugned order suffered no infirmity. Resultantly it was held that the merits of the matter could not be looked into. The petition was thus dismissed.[Singbel GPU Construction Co-Operative Society Ltd. v. CCE, 2019 SCC OnLine Sikk 105, decided on 18-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V.K Jain (Presiding Member), J. allowed a revision petition filed by a farmer seeking enhancement of compensation provided for loss of his crops.

Petitioners herein were farmers who had bought seeds from the respondent society. The resultant crops were not up to the mark even though the petitioners had followed proper instructions and procedures and had taken due care and precautions required for the said crop. Aggrieved from the financial loss incurred, the petitioners approached the District Forum but their complaints were dismissed by the forum. Consequently, they approached the State Commission which allowed their appeals and directed the respondents to pay compensation to the petitioners. However, since the petitioners were not satisfied with the quantum of the compensation awarded to them by the State Commission, they approached the Commission by way of these revision petitions. The petitioners also submitted applications seeking condonation of delay in filing the revision petitions.

The Court condoned the delay considering the fact that the petitioners were poor farmers who were not awarded even the minimum price of the crop while assessing the compensation for the loss of the crop.

The Court, calculating the compensation for the loss of the crop at Rs 17,000 per quintal, awarded the petitioner, Vinod Kumar, Rs 3,40,000 and the petitioner, Vijay Kumar, Rs 1,02,000 in addition to compensation for the mental harassment and the cost of litigation awarded by the State Commission. The balance payment to the complainants was to be made within eight weeks from the date of the judgment, failing which it would carry interest at 9 per cent per annum from the date of institution of the complaint.[Vijay Kumar v. IFFCO, 2019 SCC OnLine NCDRC 78, decided on 17-05-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: V.M. Morobane, AJ. referred the application to trial as the facts were not capable of being resolved.

The facts stated by both the parties on affidavits were in dispute. The respondent stated that he is the owner of the vehicles and the operating licenses. The applicant sought an order to compel the respondent to transfer documents to his name. The respondent against the relief sought, filed an affidavit six days late for which he applied for condonation of delay.

Counsel for the applicant, N.W. Phalatsi contended that a receiver was appointed to divide the estate between the applicant and his former wife after divorce. The vehicles in question were not disclosed to the receiver. It was submitted that the applicant is a police officer with the South African Police Service and has a running taxi business since 2002. The applicant being a police officer should not have engaged in any business. Therefore, he entered into a verbal agreement with the respondent and made him the full member of the taxi business without making him the owner of the vehicles.

The respondent contended that he is the registered owner of the vehicles and had entered into an agreement for partnership into the business.

The Court observed that both the parties have their own version of the agreement entered into. According to the Plascon-Evans rule, in motion proceedings, if disputed facts arise on the affidavits, a final order can be granted only if the facts admitted of the applicant and statement submitted by the respondent, justify such order. Applying the rule and common-sense approach as laid down in Soffiantini v. Mould, 1956 (4) SA 150 (EDLD) at 154G, the dispute could not be resolved. The Court ordered that the application be referred to trial.[Phelabadane Gert Ledidi v. Joseph Mzonjani Lididi, Case no. 5503 of 2018, decided on 07-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission, New Delhi: C. Viswanath (Presiding Member) dismissed a revision petition as the petitioner was not able to give sufficient reasons for condonation of delay.

The respondent had deposited Rs 500 on 26-02-1979 for allotment of MIG house in Sikandara Residential Scheme, Agra, launched by the UP Housing Board. Subsequently, he deposited Rs 27,612.50 and Rs 8,899.10 towards the house costing Rs 1,89,850.50. According to the respondent he also completed all other formalities, yet he was not given possession of the house. On not depositing the remaining amount in time, the Housing Board cancelled the allotment on 03-03-1992. On his request, the allotment was again restored on 24-01-1995. The respondent was then asked to deposit the remaining cost of the house with interest and penal interest. Aggrieved by the penal interest charged, the respondent filed a consumer complaint before the District Forum, Agra. The District Forum allowed the appeal but the respondent, further aggrieved, filed an appeal before the State Commission. The State Commission modified the impugned order accordingly. Aggrieved by the order of the State Commission, the petitioners filed the present revision petition before the Commission.

Learned counsel of the petitioner, Dr Indra Pratap Singh submitted that the present petition was accompanied by an application seeking condonation of delay of 162 days in filing the Revision Petition. He further informed Commission that “Earlier the filing of the present revision petition was entrusted to some other learned counsel. However, due to some reasons, the learned counsel returned the file to the petitioner department at Lucknow. Subsequently, the responsibility of filing the present revision petition was entrusted to the present counsel. The petitioner was a government body which needed approval from different authorities before filing the case which caused some delay in filing the case. For filing revision petition the study, preparation and drafting took some time. Also, substantial time was consumed in getting the documents accurately translated.” Thus, he prayed before the Commission to allow the petition in light of the reasons given above.

The Commission observed that the petitioner appeared to have not acted diligently and remained inactive for a long time. The Supreme Court had very clearly held that the settled legal proposition of law of limitation had to be applied with all its rigour when the statute so prescribed, though it may harshly affect a particular party. The petitioner had not been able to give adequate and sufficient reason which prevented it to approach this Commission within the limitation.

The Commission also relied on the judgment of Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd., AIR 1962 SC 361, in which it was clearly observed that condonation of delay was not a matter of right and the applicant had to set out the case showing sufficient reasons for not being able to come to the Commission within the stipulated period of limitation. Thus, the petition was dismissed as it failed to give sufficient reasons to the Commission. [Housing Commr. UP Avas Vikas v. Shiv Charan Sagar, Revision Petition No. 105 of 2019, decided on 29-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT), Delhi: A Coram of Justice Raghuvendra S. Rathore (Judicial Member) and Dr Satyawan Singh Garbyal (Expert Member) allowed an appeal filed for condonation of delay by exercising the discretionary authority vested to them.

In this case, an Environment Clearance Certificate (EC) was granted by Ministry of Environment Forest and Climate Change (MoEF & CC) and thereafter, on the 90th day from issuance of the EC, this appeal was filed. However, the specified limit allows an appeal to be filed within a span of 30 days and it can be allowed for further 60 days only if the Tribunal is convinced by the reason of that delay.

Learned counsels for the appellant, Ritwick Dutta, Saurabh Sharma and Sharan Balakrishna pleaded that limitation in this case for the purpose of filing of the appeal commences on the date when the appellant had the knowledge about the issuance of EC. It was contended that for the appellant a communication of issuance of an EC for the purpose of knowledge to the public including the appellant is when the proper procedure for bringing the same in public domain is followed. In this regard, he submitted that the public notice in respect of EC was published in the newspaper only on 02-03-2018. Further, it was submitted that the said notice did not give complete details. It was submitted on behalf of the appellant that after getting the information the appellant for the purpose of filing of appeal had started collecting the relevant documents etc. On the premise of the said submissions, the learned counsels for the appellants prayed that the delay in filing the appeal be condoned as it was within limitation from the date of publication in the newspaper and even otherwise there was sufficient cause for filing the appeal on the 90th day from date of issuance of EC.

Learned counsels for the respondent,  Yogmaya Agnihotri, Mahindra Acharya, Vishal Bhatnagar, Mahavir Rawat, Mr. Tarkeshwar Nath and Sahil Sood opposed the prayer of the appellant and submitted that the grounds given in the application had not been supported by any evidence on record to corroborate the facts which are said to be material in respect of the delay which has been caused in filing the appeal. It was also been submitted that the averments made in the application are not sufficient and therefore the Tribunal may not condone the delay and the appeal be declined to be entertained on account of the fact that it is barred by limitation.

The Tribunal observed that as far as the submissions made by the appellant with regard to the publication of the notice in the newspaper is concerned, putting the fact of issuance of EC in public domain and uploading the same on the internet by the Ministry is sufficient communication to the public at large. The Tribunal further observed that the present case was not one where there was no cause/reason given for the delay. The events of the intervening period had been explained and therefore, they were of the opinion that the question raised in the appeal should be considered and decided on merits. Consequently, Tribunal allowed the application for condonation of delay. It was ordered that the appeal be listed for consideration on merits.[Laxmi Chouhan v. Union of India, 2019 SCC OnLine NGT 116, decided on 24-05-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. rejected an application for seeking condonation of delay in the filing review petition.

The facts of the case were that the petitioner filed an RTI application against the order wherein respondent have denied filling up of 36 vacancies under the ST category or allotment of the same to a Physically Handicapped candidate in ST Category. When no response was received to the RTI application, the first appeal was made by the applicant, in which no order was passed. Thereafter the second appeal was preferred which was disposed of through an order by stating that no post was filled under ST category from Handicapped person.

Mazhar Ali Khan, counsel for the applicant stated that on obtaining the copy of the order, he could not reach the court as at that time summer vacations were going on. It was further stated that the statutory period of 30 days is prescribed under the Limitation Act as well as High Court rules and there is a delay of 446 days in filing the review petition. It was further submitted that there was a cause of action after the order of the second appeal under the RTI Act and the delay can be condoned as it was otherwise beyond the control of the petitioner.

The Court was of the opinion that the rules of limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner so as to save the system from anarchy. The Court added that the law of limitation fixes a life span for every legal remedy. It was further held that the applicant was gross negligent that the word sufficient cause was not used in the application. The court thus held that Law is also clear that each day after limitation time, is required to be explained by cogent means. It cannot be set aside on flimsy grounds and at the wish of applicant who remained all along negligent. Thus the application seeking condonation of delay along with review petition was dismissed by the Court.[Harish Chander v. State of J&K, 2019 SCC OnLine J&K 481, decided on 28-05-2019]

Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., condoned a delay of 50 days in filing the written statement.

As per facts of the case, in the suit filed by the respondent, the petitioner was served the summons on 10-07-2017; and on 12-8-2017, he sought time to engage a government counsel, who was eventually appointed and put in an appearance on 05-09-2017 and sought the extension of time to file written statement. However, there was a delay of fifty days in filing the same. The petitioner filed an application for condonation of delay but it was dismissed by the trial court. Aggrieved thereby, the petitioner filed the present appeal.

Susan Linhares, Additional Government Advocate appeared for the petitioner. Whereas, the respondents were represented by R.G. Ramani, Advocate.

Relying on Kailash v. Nanhku, (2005) 4 SCC 480, the High Court observed, “It is now well settled that the period fixed under Rule 1 Order 8 CPC is directory in nature and in a given case where a party shows sufficient cause, the delay can be condoned.” It was noted that in the present case, a draft of the written statement was sent to the department concerned for its approval which resulted in a delay of 50 days in filing the written statement. On an overall view of the matter, the Court found that petitioner showed a sufficient cause. As such, the petitioner was allowed and the impugned order was set aside. [Govt. of Goa v. Shankar Prabhakar Dalvi, 2019 SCC OnLine Bom 443, dated 12-03-2019]

Case BriefsHigh Courts

‘Vigilantibus, non-dermientibus, jura subveniunt’

(the law helps those who are watchful and not those who are asleep)

Delhi High Court: Vinod Goel, J., dismissed Delhi Waqf Board’s applications for condoning the delay of 21 years and restoring a revision petition.

Hashmat Nabi and Swathi, Advocates for the Waqf Board submitted that on 15-05-2018, the newly constituted management took notice of the disposal of the present petition after instructing its standing counsel to prepare a list of matters which have been disposed of. The petition was originally filed though Raman Kapur, Advocate; and B.D. Sharma, Advocate appeared for the Board from 1989 till 1994. However, after that, no appearance was made o behalf of the Board and therefore, the petition was dismissed for non-prosecution. In such background of the case, the application for condonation of 21 years’ delay along with the application for restoration of revision petition was filed.

At the outset, the High Court observed, “it is a well-settled principle of law that a litigant, whether it is an individual or a government body or any legal entity, it owes a duty to be vigilant of its rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against it or initiated at its instance.”Holding that the Board could not be permitted to blame the previous counsel after 21 years for not providing the case record, the Court stated, “it appears that the blame is being attributed to the previous counsel with a view to get the delay condoned. After filing the revision petition, the applicant cannot go off to sleep and wake up from a deep slumber after the passage of a long period of 21 years as if the court is a storage of the petitions filed by such negligent litigants. Simply because there is a change in the management cannot give sufficient cause to the applicant to file such an application for restoration after a long period of 21 years has elapsed.” Relying on N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the court reiterated, “the object of the law of limitation is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims.” In such view of the matter, the court did not find any merit in the applications and therefore dismissed them. [Delhi Wakf Board v. Mohd. Bi, 2019 SCC OnLine Del 7178, dated 25-01-2019]

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Punjab and Haryana High Court: This petition was filed before a Division Bench of Amit Rawal and Arun Kumar Tyagi, JJ. against the impugned order passed by the Debts Recovery Tribunal-II, Chandigarh whereby an application for condonation of delay accompanied by Securitization Application was dismissed, being barred by 52 days.

Petitioner submitted that an order passed by this court held that DRT had jurisdiction to entertain an application for condonation of delay lest accompanied with Securitization Application. It was viewed that the explanation provided in the application was reasonable. The DRT should not have dismissed the application and decided the same in limine. The case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 was referred to wherein the principles applicable to an application for condonation of delay were given.

High Court observed that the securitization application filed against the measures taken under Section 13(4) of the SARFAESI Act was dismissed being barred by 52 days. DRT’s jurisdiction under S. 5 of the Limitation Act was not disputed and it should not have adopted harsh approach by not condoning the delay as per the principles laid down in Esha Bhattacharjee case. Therefore, the impugned order was set aside and the DRT (II), Chandigarh was directed to decide the case on merits. [Ajmer Enterprises v. Debt Recovery Tribunal, 2019 SCC OnLine P&H 4, decided on 04-01-2019]

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Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J. allowed the condonation of delay as the sufficient cause stands justified.

The petitioner has filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 350 days caused in filing the criminal appeal against the judgment passed in the POCSO Act.

The Court observed, the words “Sufficient cause for not making application within the period of limitation” should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case following which substantial justice shall be advanced when the delay has not been due to the negligence on the part of the applicant. In nutshell, the decisive factor for condonation of delay is not the length of delay but sufficiency and satisfactory explanation.

Thus there was nothing on record which could deprive substantial justice to the applicant by way of statutory appeal as the explanation for delay does not smack mala fide as a resultant the condonation was allowed. [Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC OnLine Guj 2610, Order dated 01-10-2018]

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Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed a writ petition challenging the order passed by the Additional District Judge, whereby the Appellate Court had dismissed the application under Section 5 of the Limitation Act for condonation of delay. 

The petitioners were aggrieved by this order and their counsel Mr Prasanna Ku. Parhi, contended that the delay was justified and the petitioners were prevented by sufficient cause in not filing the appeal on time and the Appellate Court had dismissed the same on an untenable and unsupportable ground. 

The seminal question that hinged for consideration was that whether an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was a decree or order. 

The Court placing reliance on the case of Fakira Mishra v. Biswanath Mishra, 2015 SCC OnLine Ori 313, held that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. [Jitendra Naik v. Radhyashyam Naik, 2018 SCC OnLine Ori 432, dated 10-12-2018]

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Jammu and Kashmir High Court: A Single Judge Bench comprising of Sanjeev Kumar, J., dismissed the current writ petition invoked for quashing the order of the district judge whereby the appeal of the petitioner was held as non maintainable and the order passed by the Assistant Labour Commissioner regarding the payment of wages to the employees was upheld.

The facts of the case are that a few employees had filed for payment of their withheld wages. The application was filed much after the period of limitation, prescribed under the Payment of Wages Act. The application was accompanied by an application for condonation of delay. The Assistant Labour Commissioner while exercising the discretionary powers allowed the condonation application. The petitioner thus filed an appeal which was dismissed. The impugned order dismissing the appeal was under question here.

The Court upholding the decision of the District Judge and Assistant Labour Commissioner said that condonation of the delay is a discretionary order and had been passed by the Authority after considering the stand taken by the rival parties. It has taken note of the social welfare nature of the legislation, i.e., the Payment of Wages Act, which is enacted for the benefit of workers who are denied wages for the work they render by the employer by misusing their higher bargaining powers and fiduciary relationship. The petition was thus dismissed. [Division Forest Officer, Bandipora v. Assistant Labour Commissioner,2018 SCC OnLine J&K 955, decided on 04-12-2018]

Bail Application
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Himachal Pradesh High Court: A Single Judge Bench of Tarlok Singh Chauhan, J., dismissed a revision petition filed against the order of the first appellate court, whereby the appeal filed by the petitioner was dismissed on the ground of delay.

The main issue that arose before the Court was whether the first appellate court was justified in rejecting the petitioner’s application for condonation of delay and resultantly dismissing his appeal.

The Court observed that it is a settled principle of law that in matters where a delay has been caused, the courts should generally adopt a liberal approach because sometimes refusal to condone delay might result into travesty of justice. The Court further observed that cause of substantial justice should be preferred over the technical consideration, however, the Court must also be vigilant and cautious because there is an increasing tendency of treating delay as a non-serious matter. The Court must look for bona fides of the person seeking condonation of delay and the conduct and behaviour of a party in approaching the appropriate forum, must be taken into account while considering an application for condonation of delay. This view is backed by the Supreme Court judgment in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.

The Court held that it is incumbent upon the party seeking condonation of delay to show sufficient cause which prevented the petitioner from filing the application within the statutory period. The Court held that even though the petitioner was aware of the outcome, she did not take any steps and it was only after a delay of 350 days that she filed an appeal before the appellate court. Hence, the lower courts had rightly rejected her appeal on the ground of delay. Resultantly, the Court dismissed the revision petition and upheld the order of lower court. [Sarla Devi v. Jagan Nath,2018 SCC OnLine HP 1541, order dated 30-10-2018]

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Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed against the order of District Judge whereby appellant’s application for condonation of delay in filing first appeal was dismissed.

There was a partition between the appellant and his two sisters. Originally, in 2004, after the partition, two-third of the property fell into the share of appellant; whereas, the sisters got one-sixth each. However, in view of the amendment in Hindu Succession Act in 2005, on an application filed by the sisters, the earlier decree was modified and now all the three parties got one-third share each. Aggrieved by the modification, the appellant had filed a review petition in 2012 which was dismissed in 2014. Within two months thereafter, the first appeal was filed along with the application for condonation of delay of 4 years and 30 days. The District Judge, however, dismissed the application holding that delay had not been satisfactorily explained. Aggrieved thus, the present appeal was filed.

The High Court was of the view that after modification of the preliminary decree, the appellant must have acted on advice of his advocate, who instead of filing an appeal, preferred the review petition. The law on the law on the point was not clear; modification in shares in a partition having been introduced first time. Since the review petition was held not maintainable, the appellant had a right to file the first appeal. It was observed as well settled law that if a party is litigating its cause before a wrong forum under a bona fide belief as per legal advice gives by his advocate, the delay occurred in such proceedings has to be considered for deciding an application for condonation of delay. This is recognized in Section 14 of the Limitation Act. Therefore, the High Court set aside the order impugned and directed the parties to appear before the first Appellate Court. The appeal was, thus, allowed. [Patherao Narsu Patil v. Gangubai A. Lad,  2018 SCC OnLine Bom 2892, dated 03-10-2018]