1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1566 OF 2008 IN APPEAL (L) NO. 159 OF 2008 IN SUMMONS FOR JUDGMENT NO. 420 OF 2004 IN SUMMARY SUIT NO. 1326 OF 2004 WITH NOTICE OF MOTION NO. 1586 OF 2008 IN APPEAL (L) NO. 191 OF 2008 IN NOTICE OF MOTION NO. 2763 OF 2005 IN SUMMONS FOR JUDGMENT NO. 420 OF 2004 IN SUMMARY SUIT NO. 1326 OF 2004 MAHARASHTRA KRISHNA VALLEY DEVELOPMENT CORPORATION, PUNE .. APPELLANT Vs. SHRIYAM BROKING INTERMEDIARY LTD. RESPONDENT 2 Mr. Vijay Patil i/b Vinod Jadhav for the appellant Mr. Virag Tulzapurkar i/b Junnarkar & Associates for the respondent CORAM:SMT.RANJANA DESAI & K. K.TATED, JJ. DATE: 22/10/2008 P.C. . The appellants are original defendants in Summary Suit No. 1326 of 2002. On 22/8/05 learned Single Judge (S. J. Vazifdar, J.) decreed the respondent/plaintiff’s suit for recovery of an amount of Rs.56,33,000/- together with interest. When this decree was passed, learned counsel for the appellants was not present. The appellants, therefore, took out Notice of Motion No. 2763 of 2005 in Summons for Judgment No. 420 of 2004 for setting aside the judgment and decree dated 22/8/05. The said notice of motion was dismissed by learned Single Judge (D.K. Deshmukh, J.) on 24/4/07 holding that learned Single Judge (Vajifdar, J.) was justified in passing decree against the appellants. 2. Being aggrieved by judgment and decree dated 22/8/05 the appellants have preferred Appeal (L) No. 159 of 2008. There is a delay of 911 days in 3 filing the appeal and hence the appellants have taken out Notice of Motion No. 1566 of 2008 for condonation of delay. 3. Being aggrieved by Order dated 24/4/07 passed by learned Single Judge (Deshmukh, J.) in Notice of Motion No. 2763 of 2005, the appellants have preferred appeal being Appeal (L) No. 191 of 2008. There is 308 days delay in filing the said appeal. Hence the appellants have taken out Notice of Motion NO. 1586 of 2008. 4. Both these motions can be disposed of by a common order because facts are interlinked. The case of the appellants, as is apparent from the affidavit-in-support of the motions is that certified copy of order dated 24/4/07 was made available to them by the advocate only in October, 2007. According to the appellants after obtaining the certified copy and after processing the matter in the office the appeals were filed. Learned counsel for the appellants submitted that the appellants are a Corporation. Time was taken to obtain certified copy and process the matter in the office of the appellants. The delay is not intentional. He submitted that sufficient reasons 4 are set out by the appellants in the affidavits as to why the appeals were not filed in time and hence in the interest of justice, the delay may be condoned. 5. Mr. Tulzapurkar, learned counsel for the respondents on the other hand submitted that no case is made out for condonation of delay. He submitted that Notice of Motion No. 2763 of 2005 was taken out by the appellants for setting aside the judgment and decree dated 22/8/05. Counsel for the appellants appeared in that matter. They had, therefore, copy of the said judgment and decree. He submitted that the explanation offered by the appellants is not at all acceptable and must be rejected. 6. In support of his submissions, learned counsel relied on judgment of the Supreme Court in State of U.P. & ANR. v. Vinod Prakash Tayal & Ors., 1995 Supp (4) S C C 412. In that case there was 149 days delay in filing the appeal by the State of U.P. The explanation offered for delay was interdepartmental correspondence. The Supreme Court observed that mere reliance on interdepartmental correspondence cannot advance the 5 case of the State for the condonation of inordinate delay and that time taken for such deliberations must be sensible and reasonable. In the facts before it the Supreme Court observed that time taken was neither sensible nor reasonable. Relevant observations of the Supreme Court on which reliance is placed may be quoted: . "We find it difficult to condone this inordinate delay of 149 days. The State Government shall sit up and take note of such lapses on the part of its officers which will harm public interests. No officer loses personally when appeals of Government are lost for delay. But there are cases, as here, where public interest suffers on account of such inaction". 7. Learned counsel also relied on the judgment of the Supreme Court in Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361. He led stress on the following paragraph: . "In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives 6 rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269, . "Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ’sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of 7 bonafide is imputable to the appellant". 8. Mr. Tulzapurkar submitted that inasmuch as the appellants have been extremely negligent and are guilty of inaction and since then they have not made out any sufficient cause, both the motions should be dismissed, in the light of the above judgments. 9. Mr. Tulzapurkar submitted that in any case even on merits the appellants do not have a good case as they have admitted the liability. He submitted that learned Single Judges have made reference to letter dated 26/8/02 in which the appellants have admitted their liability. Mr. Tulzapurkar submitted that for all the above reasons motions be dismissed. 10. There cannot be any dispute about the principles enunciated by the Supreme Court in the judgments on which reliance is placed by Mr. Tulzapurkar. We may also usefully refer to the decision of the Supreme Court in G. Ramegowda, G. Ramegowda, G. Ramegowda, Major Etc. V/s. The Special Land Acquisition Major Etc. V/s. The Special Land Acquisition Major Etc. V/s. The Special Land Acquisition Officer, Banglore and Officer, Banglore and Officer, Banglore and in Basavalingappa V/s. The Basavalingappa V/s. The Basavalingappa V/s. The Special Land Acquisition Officer, Banglore, AIR Special Land Acquisition Officer, Banglore, AIR Special Land Acquisition Officer, Banglore, AIR 8 1988, SC 897 1988, SC 897 1988, SC 897, where the Supreme Court held that : "7. The contours of the area of discretion of the Courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this COurt. See Ramlal V. Rewa Coalfield Ltd., (1962) 2 SCR 762 : (AIR 1962 Sc 361); Shakuntala Devi v. Kuntal Kumari, (1969) 1 SCR 1006 : (AIR 1969 SC 575); Concord of India Insurance Co. Ltd. v. Nirmala Devi; (1979) 3 SCR 694: (AIR 1969 SC 1666); Mata Din v. A. Narayanan, (1970) 2 SCR 90: (AIR 1970 SC 1953); Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107: (AIR 1987 SC 1353) etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression ’sufficient cause’ in Section 5 must receive 9 a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In Katiji’s case (supra), this Court said: . "When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.’ . "It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.’ 8. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If 10 appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decision of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. . The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. . Therefore, in assessing what, in a particular case, constitutes ’sufficient cause’ for purposes of Section 5 it might, perhaps, be somewhat unrealistic to exclude 11 from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have ’a little play at the joints’. Due recognition of these limitations on Governmental functioning - of course, within a reasonable limit - is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers 12 should not be imputed to Government. 11. In Naubat Ram Sharma V/s. Additional District Naubat Ram Sharma V/s. Additional District Naubat Ram Sharma V/s. Additional District Judge II, Moradabad & Ors., AIR 1987, SC 1352 Judge II, Moradabad & Ors., AIR 1987, SC 1352 Judge II, Moradabad & Ors., AIR 1987, SC 1352 the Supreme Court held that :- "3. The legislature has conferred the power to condone delay by enacting Sec.5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ’merits’. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :- 13 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day’s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay ? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non-deliberate delay. 14 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ’State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the ’State’ is the applicant 15 praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression ’sufficient cause’. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the fact of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before 16 it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. 12. In Special Tehsildar V/s. K.V. Ayisumma Special Tehsildar V/s. K.V. Ayisumma Special Tehsildar V/s. K.V. Ayisumma reported in AIR 1996, SC 2750 reported in AIR 1996, SC 2750 reported in AIR 1996, SC 2750 the Supreme Court held that :- "2. It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of the such instance. It 17 is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice, it would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedandic. Under those circumstances, the Subordinate Judge had rightly adopted correct approach and had condoned the delay without insisting upon explaining every day’s delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned." 13. Viewed in the light of the above judgments and having gone through the explanation offered by the appellants, we are of the opinion that to advance substantial justice in the facts of this case, the expression ’sufficient cause’ must receive a liberal interpretation and delay should be condoned 18 after saddling the appellants with costs quantified at Rs.25,000/-. Such order will compensate the respondents for the inconvenience caused to them and it will also be in the interest of justice. Hence the delay in filing Appeal (L) No. 159 of 2008 and Appeal (L) No. 191 of 2008 is condoned on the appellants paying costs quantified at Rs.25,000/- to the respondents within six weeks from today. Payment of costs is condition precedent to the condonation of delay. 14. Motions are disposed of. JUDGE JUDGE