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M/s. Ess Gee International, Rep. by its Manager, New Delhi v/s The State of Tamil Nadu, Rep. by its Secretary to Government, Chennai & Others

    CMP. No. 20698 of 2021 & W.A. SR. No.85362 of 2021
    Decided On, 10 March 2022
    At, High Court of Judicature at Madras
    For the Appellant: P. Ambili Menon, Advocate. For the Respondents: Vijay Anand, Special Government Pleader (Forest).

Judgment Text
(Prayer: CMP.No.20698 of 2021: Civil Miscellaneous Petition filed under Section 5 of the Limitation Act seeking to condone the delay of 2445 days in filing the Writ appeal SR.No.85362 of 2021. Appeal filed under Clause 15 of The Letters Patent against the order dated 05.09.2013 passed by the learned Judge in WP.No.20702 of 2003.)

R. Mahadevan, J.

1. Assailing the order dated 05.06.2013 passed by the learned Judge in WP.No.20702 of 2003, the petitioner / appellant has preferred the present writ appeal bearing SR.No.85362 of 2021 along with the petition in CMP.No.20698 of 2021 to condone the delay of 2445 days in filing the same.

2. According to the petitioner / appellant, they are engaged in the business of export of sandalwood. During the course of such business, they participated in the auctions conducted by the second respondent on 30.10.1996 at three depots viz., Sathyamangalam, Salem and Tirupattur and were declared as successful bidder in respect of Tirupattur depot for a quantity of 20 metric tonnes of sandalwood of two varieties for a total sale consideration of Rs.75,90,000/-. The bid was confirmed and the proceedings in C.No.13145/1996/S dated 28.12.1996 came to be issued by the third respondent, which was received by the petitioner / appellant on 07.01.1997. At the time of auction, they had deposited a sum of Rs.16,00,000/- towards EMD and 1/5th of the sale price. However, due to the reasons beyond their control, the petitioner / appellant did not make the balance sale consideration and take delivery of the goods. Subsequently, by proceedings dated 15.09.1997, it was intimated by the second respondent that time was extended by 45 days for payment of the balance sale consideration along with 5% penalty. Though the petitioner / appellant was inclined to take delivery of goods by paying the balance sale consideration, they sought waiver of the sales tax levied to the tune of Rs.6,08,718/-, which according to them, was not liable to pay in law. The said claim was not considered by the respondent authorities.

3. It is the further case of the petitioner / appellant that while so, the third respondent proceeded to resale the materials already sold to the petitioner / appellant in the auction held on 30.10.1996 by way of public auction on 20.12.1999, for a lesser sum of Rs.54,32,000/- as against the sum of Rs.75,90,000/- in respect of Tirupattur depot. Consequently, the petitioner / appellant was called upon to pay the differential amount of Rs.21,58,000/- by the order of the third respondent dated 13.09.2002. Aggrieved by the same, they filed WP.No.20702 of 2003 and the said writ petition was dismissed by the learned Judge, by order dated 05.06.2013, which is impugned in the writ appeal SR.No.85362 of 2021.

4. The learned counsel appearing for the petitioner/appellant submitted that originally, a writ appeal bearing SR.No.63110/2013 was filed along with condone delay petition, as against the order of the learned Judge dated 05.06.2013 passed in WP.No.20702 of 2003. However, the status of the said case was not informed to the petitioner / appellant by their counsel due to missing of case bundles; they were informed only recently about the disposal of the said condone delay petition by order dated 01.07.2015 granting liberty to file a fresh application disclosing full details; and thereafter, the present appeal along with condone delay petition came to be filed. Hence, the delay of 2445 days occurred was only due to unaware of the actual status of the case and the same is neither wilful nor wanton. Stating so, the learned counsel submitted that the petitioner / appellant has got a fair chance of success in the appeal and if the delay is not condoned and the appeal is dismissed at the threshold, it would tantamount to deny an opportunity to have the grievance redressed in accordance with law

5. On the other hand, the learned Special Government Pleader (Forest) appearing for the respondents drew the attention of this court to the averments made in the counter affidavit filed by the third respondent and submitted that the petitioner / appellant failed to make payment of balance sale consideration, despite the reminders and hence, the respondent authorities invoked the auction condition no.9 and issued show cause notice dated 06.03.1997; after affording sufficient opportunity and detailed correspondence to the petitioner / appellant, the EMD amount was forfeited to the Government and they were declared as defaulter / blacklisted and the sandalwood in question was ordered to be resold at their risk by proceedings No.13145/96.S dated 16.05.1997 by the District Forest Officer, Tirupattur / 3rd respondent; however, time was extended for payment of balance sale consideration on two occasions, but the petitioner /appellant did not comply with the same, which compelled the authorities to enforce the condition no.9 of the sale notice, forfeiting the amount of Rs.16,00,000/- on 20.04.1999 and the sandalwood in question was notified and resold on 20.12.1999 for Rs.54,32,000/- which is less than the amount quoted by the petitioner / appellant and thereby incurred loss of Rs.21,58,000/- to the Government and hence, the recovery of the said loss amount was made against the petitioner / appellant, in accordance with law. The learned counsel further submitted that the petitioner / appellant has no ground to challenge the order passed by the learned Judge and if at all they have any interest, they could have made an appeal immediately after disposal of the writ petition as early as on 05.06.2013, but they have failed to do so and dragged on the issue for several years without any action. It is also submitted that due to efflux of time, various development have taken place as of now. Therefore, the learned counsel prayed to reject the plea of the petitioner / appellant to condone the exorbitant delay of 2445 days in filing the writ appeal.

6. Heard both sides and perused the materials placed before this court.

7. Admittedly, the petitioner / appellant has approached this court by filing the writ appeal as against the order dated 05.06.2013 passed by the learned Judge in WP.No.20702 of 2003, with an inordinate delay of 2445 days. However, the perusal of the affidavit filed in support of the condone delay petition, does not show any reason much less valid reason to accept the delay in preferring the writ appeal. The reason advanced by the petitioner / appellant in its condone delay petition is very vague and too general and hence, the same cannot be considered as a reasonable one so as to condone the inordinate delay of 2445 days.

8. In this context, it is pertinent to refer to a decision of the Hon'ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy, [1998(7) SCC 123], wherein, it was observed as follows:

“The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The timelimit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not meant to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The words 'sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”

9. Similarly, the relevant portion of the judgment of the Hon'ble Supreme Court in Sankaralingam and another v. V. Rahuraman [2002(3) CTC 13] with regard to the points to be pondered in a case of condonation of delay, which would speak volume against the petitioners therein, is extracted below:

“(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances, (b) Vagueness of the affidavit and contradiction between the affidavit and deposition before Court, (c) Failure to place any materials before Court to substantiate the case, and (d) Absence of arguable points and law in the defence.”

10. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [2013 (12) SCC 649], the Hon'ble Supreme Court has culled out the principles applicable to an application for condonation of delay and the same are reproduced hereunder:

“i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

11. In H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another, [2015 (1) Supreme Court Cases 680], the Hon'ble Supreme Court, after considering a decision of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, [(1990) 1 LLN 457] and its earlier decision in Esha Bhattacharjee case (supra), held as follows:

“23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) ...

24. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the nonfurnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.”

12. It is also useful to extract paragraph Nos.14 and 17 of the judgment of this court in Tamil Nadu Mercantile Bank Ltd case (supra), which read as under:

“14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view,

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each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed period of limitation.” “17.... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.” 13. Keeping in mind the principles of law as extracted supra and applying the same to the facts of this case, we are of the opinion that in granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the petitioner / appellant was diligent and was not guilty of negligence, whatsoever. Whereas, the petitioner / appellant herein has not shown any good and sufficient reason to condone the huge delay of 7 years in preferring the appeal. The delay cannot be condoned simply because the petitioner / appellant’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. Therefore, we are not inclined to condone the delay in filing the writ appeal. 14. Accordingly, the condone delay petition is dismissed. Consequently, the writ appeal stands rejected at SR stage itself. No costs.