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Tamil Nadu Cement Corporation Ltd., Rep by its Deputy General Manager v/s Sun Industries, Rep. by its partner, K.T. Ramaraja & Others


Company & Directors' Information:- CEMENT CORPORATION OF INDIA LIMITED [Active] CIN = U74899DL1965GOI004322

Company & Directors' Information:- J. K. CEMENT LIMITED. [Active] CIN = L17229UP1994PLC017199

Company & Directors' Information:- CEMENT INDIA LTD [Active] CIN = U26942AS1994PLC004154

Company & Directors' Information:- SUN INDUSTRIES LIMITED. [Active] CIN = U51909DL1991PLC045798

Company & Directors' Information:- A M S CEMENT PVT LTD [Active] CIN = U26942ML1995PTC004606

Company & Directors' Information:- H P CEMENT AND INDUSTRIES PVT LTD [Active] CIN = U26942AS1995PTC004559

Company & Directors' Information:- S. P. CEMENT PRIVATE LIMITED [Active] CIN = U26940MP2006PTC018404

Company & Directors' Information:- S. P. CEMENT PRIVATE LIMITED [Active] CIN = U01531MP2006PTC018404

Company & Directors' Information:- R. J. CEMENT INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909WB1997PTC083205

Company & Directors' Information:- Y AND M CEMENT (INDIA) PRIVATE LIMITED [Active] CIN = U26940MH2006PTC161339

Company & Directors' Information:- S D CEMENT PRIVATE LIMITED [Active] CIN = U74899DL1995PTC072298

Company & Directors' Information:- P B CEMENT PRIVATE LIMITED [Active] CIN = U36900WB2009PTC138825

Company & Directors' Information:- K G N CEMENT PRIVATE LIMITED [Active] CIN = U26942OR1991PTC002930

Company & Directors' Information:- A S K CEMENT PRIVATE LIMITED [Active] CIN = U26940RJ2012PTC040014

Company & Directors' Information:- V K CEMENT LTD [Active] CIN = U26942PB1994PLC014122

Company & Directors' Information:- J D CEMENT PVT LTD [Active] CIN = U26941CH1982PTC004960

Company & Directors' Information:- B S CEMENT PVT. LTD. [Active] CIN = U26942OR1986PTC001767

Company & Directors' Information:- SUN PVT LTD [Active] CIN = U24246RJ1984PTC003093

Company & Directors' Information:- G SUN INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC071425

Company & Directors' Information:- P H P CEMENT INDUSTRIES PVT LTD [Strike Off] CIN = U26900MH1981PTC024812

Company & Directors' Information:- M P CEMENT PVT LTD [Strike Off] CIN = U26942CT1984PTC002333

Company & Directors' Information:- J K CEMENT PVT LTD [Strike Off] CIN = U26941GJ1981PTC004569

Company & Directors' Information:- J D CEMENT LIMITED [Strike Off] CIN = U26943DL1980PLC010512

Company & Directors' Information:- J S K CEMENT PRIVATE LIMITED [Active] CIN = U26940RJ2012PTC039836

Company & Directors' Information:- J G CEMENT PVT LTD [Strike Off] CIN = U14106PB1993PTC013626

Company & Directors' Information:- R. M. CEMENT COMPANY PRIVATE LIMITED [Active] CIN = U26941CT2009PTC021396

Company & Directors' Information:- A R CEMENT CO PVT LTD [Strike Off] CIN = U02694MP1982PTC002042

Company & Directors' Information:- K L CEMENT PRIVATE LIMITED [Strike Off] CIN = U26940WB2008PTC127270

Company & Directors' Information:- M C A CEMENT PRIVATE LIMITED [Active] CIN = U26943RJ1994PTC008065

Company & Directors' Information:- GENERAL INDUSTRIES LTD [Strike Off] CIN = U36900WB1934PLC007878

Company & Directors' Information:- R S CEMENT PRIVATE LIMITED. [Active] CIN = U74899DL1992PTC047484

Company & Directors' Information:- S. K. CEMENT PRIVATE LIMITED [Active] CIN = U26960WB2012PTC187806

Company & Directors' Information:- D & D CEMENT PRIVATE LIMITED [Strike Off] CIN = U26941GJ2009PTC057912

Company & Directors' Information:- SUN INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1943PTC000994

Company & Directors' Information:- SUN INDUSTRIES LIMITED [Dissolved] CIN = U99999MH1947PTC005559

    W.A. Sr. No. 100008 of 2012, M.P. No. 3 of 2013

    Decided On, 10 April 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. MANIKUMAR & THE HONOURABLE MRS. JUSTICE V. BHAVANI SUBBAROYAN

    For the Appellant: A. Sivaji, Advocate. For the Respondents: ---------



Judgment Text

(Prayer in W.A.Sr.No.100008 of 2012: Writ Appeal is filed under Clause 15 of Letters Patent, against the order dated 08.03.1996, passed in W.P.No.3609 of 1986.

Prayer in M.P.No.3 of 2013: Miscellaneous Petition is filed under Section 5 of the Limitation Act, to condone the delay of 6070 days in filing the W.A.Sr.No.100008 of 2012.)

S. Manikumar, J.

1. Instant W.A.Sr.No.100008 of 2012 has been filed against the order, dated 08.03.1996, passed in W.P.No.3609 of 1986.

2. Supporting the prayer, to condone the delay, the appellant at paragraph 2 of the affidavit, has stated as follows:

"the petitioner filed the writ appeal, on 22.11.2012, against the order in W.P.No.3609 of 1986 dated 08.03.1996. The petitioner is advised to submit that the above writ appeal is to be allowed for the reasons more fully set out in the grounds of writ appeal and the same may be treated as part and parcel of this affidavit. The writ petition came up for final hearing and the same was allowed by the learned Judge. The counsel for the petitioner herein has not represented the case. I came to know that the order was passed only after the disposal of the connected S.A.(MD).No.1792 and 1793 and 2000 dated 30.11.2011. Further follow up action was taken after the receipt of the papers along with the said S.As judgment and decree on 29.1.2012. After going through the files it was found that further action is to be taken against above writ petition and due to pendency of the civil dispute, filing of writ appeal also could not be taken. After instructions the present counsel took steps to file copy application on 13.03.2012 in the said writ petition. Stamps were called for on 9.11.2012 and the same furnished on the same day. The order copy was made ready on 09.11.2012. After consulting the present counsel the writ appeal was preferred on 22.11.2012. In the mean while the time for filing the writ appeal was over and there is a long delay in filing. The delay caused only due to the said reasons which are beyond the control of the petitioner. I am personally unaware of the said order till the civil case was ended in favour of the petitioner. On account of the order in the above writ petition, the petitioner unable to move the Government for releasing the lands in favour of the petitioner. The learned Judge allowed the writ petition on the simple ground that a letter produced by the writ petitioner it was stated that the land in question was proposed to be deleted from the acquisition. This is due to a mistake in the communication of the proposal. On coming to know about this mistake, steps were taken by the State Government by filing review and the delay of 58 days in filing of the review application. The learned Judge dismissed the condone delay petition. In this review application, it was brought to the notice of the learned judge that communication produced by the writ petitioner was subsequently withdraw by the requiring body that too the deletion of the land in question was by mistake that too after the issuance of the declaration under section of the Land Acquisition Act. Without looking into this aspect of the matter, the learned Judge dismissed the condone delay petition as if the order in the writ petition was passed on merits and requires no review. Hence, the petitioner is advised to submit that the order under challenge is liable to be set aside by this Hon'ble Court for the reasons more fully set out in the grounds of the writ appeal. Since a valid ground has been made out on merits in the writ appeal, the delay in filing the writ appeal may be condoned. By doing so, no harm or prejudice will be caused to the respondent especially the 1st respondent. In the interest of justice also the delay may be condoned."

3. Though, Courts have consistently held that delay should not be pitted against substantial justice, the Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited v. Nahar Exports Limited and Another, reported in 2015 (1) Supreme Court Cases 680, after considering of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and the decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649 at paragraph Nos.23 and 24, held as follows:

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

'21.4(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.

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

21.8. (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.

21.9 (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 weight 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.

21.10. (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.

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 non-furnishing 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.'

4. On the aspect of condonation of delay, reasons to be assigned, contents of the supporting affidavit, the Hon'ble Supreme Court, in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, has broadly culled out the principles of law to be considered in the matter of condonation and it is suffice to extract paragraph No.21 from Esha Bhattacharjee's case.

'21. From the aforesaid authorities the principles that can broadly be culled out are;

21.1. (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.

21.2. (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.

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

21.4. (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.

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

21.6. (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.

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

21.8. (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.

21.9. (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.

21.10. (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.

21.11. (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.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a p

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ublic body or an entity representing a collective cause should be given some acceptable latitude.' 5. Mr.A.Sivaji learned counsel for the appellant submitted that writ petition came to be allowed due to the mistake in the communication which was subsequently withdrawn by the requisitioning body and having regard to the decision of this Court in S.A.(MD).Nos.1792 and 1792 of 2000, dated 30.11.2011, delay requires to be condoned. 6. We have gone through the material on record. The abovesaid contention has been brought to the notice of the writ court by filing a revision petition by the State Government, with a delay in which the instant appellant was also a party. Delay excuse petition has been dismissed. Appellant has not filed any review. Appeal has been filed after nearly 17 years. 7. In the light of the above decisions and on the facts and circumstances of the case, averments made in support of the affidavit to the petition to condone the huge delay of 6070 days, in filing the appeal, do not show sufficient cause. 8. We are not inclined to condone the delay of 6070 days, in filing the W.A.Sr.No.100008 of 2012. Accordingly, M.P.No.3 of 2013 is dismissed. Consequently, W.A.Sr.No.100008 of 2012 is rejected. No costs.
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