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The Union of India, Represented by the General Manager Rail Nilayam, Central Railway Secunderabad & Others v/s M/s. Divya Constructions, Hyderabad500072 & Others

    I.A. No. 1 of 2021 & CMA. No. 80 of 2021
    Decided On, 30 June 2022
    At, High Court of for the State of Telangana
    By, THE HONOURABLE MR. JUSTICE P. NAVEEN RAO & THE HONOURABLE MR. JUSTICE SAMBASIVARAO NAIDU
    For the Petitioners: ------. For the Respondents: ----


Judgment Text
P. Naveen Rao, J.

1. Heard learned counsel for appellants Sri C V Rajeev Reddy and learned counsel for respondents Sri C.N Murthy.

2. Appellants and the respondents entered into contract, where under, appellants were awarded the work of “Rehabilitation of track between 22/8 kilo metres and 20/4 on UP line between Malkhaid Road and Chittapur Stations and provision of the wall and pitching Bridge Nos.21 and 22, for a value of Rs.1,16,20,492. Disputes arose thereon. Respondent sought to refer the disputes to arbitration. The competent authority constituted Arbitral Tribunal comprising of three Arbitrators. The respondent made 15 claims before the Arbitral Tribunal. The Arbitral Tribunal passed an award on 15.07.2008 by awarding claim Nos.2(a), 2(b), 4(a), 5(a), 5(b), 9, 10, 11, 12, 13, 14 and 15, and rejected claim Nos.1, 3, 6, 7 and 8. Challenging the said award, the petitioners/appellants preferred A.O.P.No.301 of 2008 to the Court of XII Additional Chief Judge, City Civil Court, Secunderabad, to set aside the award passed by the Arbitral Tribunal. A.O.P.No.301 of 2008 was dismissed by order dated 20.09.2016. This appeal is preferred challenging the said order of the Civil Court with a delay of 1335 days.

3. Scope of Section 5 of the Limitation Act and scope of power of Court to condone the delay in filing an appeal was subject of consideration in plethora of precedent decisions of this Court and the Hon’ble Supreme Court. Suffice to note few land mark decisions to understand the concept of sufficient cause.

4. In Ramlal Vs Rewa Coalfields Ltd AIR 1962 SC 361 the Hon’ble Supreme Court while interpreting Section 5 of the Limitation Act, laid down the following proposition.

“7. In construing Section 5 (of the Limitation Act) 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 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 decreeholder 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.”

5. In N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 the Hon’ble Supreme Court went a step further and made the following observations.

“9. It is axiomatic that 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 cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

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11. 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. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. 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 resort 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.

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13. It must be remembered that 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. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” (emphasis supplied)

6. On review of precedent decisions in Esha Bhattacharjee Vs. Raghunathpur Nafar Academy (2013) 12 SCC 649 the Supreme Court summarized the principles to be applied while deciding a condonation of delay petition as under:

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

21.1. (i) There should be a liberal, pragmatic, justiceoriented, 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 factsituation.

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 encapsule 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 scrutinized 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 public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”

(emphasis supplied)

7. From the precedent decisions, it is discernible that the Court is vested with power to condone the delay in filing an appeal if sufficient cause is shown by the litigant. While assessing the reasons for delay and the quantum of delay, Court should adopt liberal approach. It is not necessary that person should explain every day’s delay in literal sense. When substantial justice and technical considerations are pitted against each other cause of substantial justice should be preserved. Any course of action adopted by the Court must serve the ends of justice. Courts are required to balance. Once the Court is convinced that delay is properly explained and is non-deliberate, court must lean in favour of condoning the delay. However, if there is inordinate delay, doctrine of prejudice is attracted and warrants strict approach. The conduct, behaviour and attitude of a party relating to inaction or negligence are relevant factors to consider.

8. In the above backdrop, it is necessary to consider, whether the appellant has furnished sufficient cause for the delay of 1108 days in filing this appeal. Further, conduct of appellant must also stand the test of bona-fides, fair and frank submissions, not resorting to false hood, misrepresentation and suppression.

9. In paragraph No.4, of the affidavit filed in support of the condone delay petition, it is stated that the railways came to know for the first time about passing of final orders by the Civil Court, when they received a letter dated 27.10.2020 from the first respondent addressed to the Divisional Engineer (Bridges of Secunderabad Division, South Central Railway, Secunderabad, praying to release the payments in accordance with the order passed by the Civil Court in A.O.P.

10. Immediately, thereafter, they have contacted the lawyer, requested him to apply for certified copy of the judgment and decree and on securing the certified copy, this appeal along with the application to condone delay is filed.

11. In paragraph No.5, it is also stated that the lawyer who appeared in the lower Court informed that the certified copy of judgment and decree were sent with his letter dated 16.11.2016 to the Divisional Engineer (Bridges) enclosing a certified copy of order in O.P. and also giving his opinion, advising to file appeal against the order passed by the Civil Court and also informed the competent authority that the letters sent by him, were acknowledged by the O.S.(Bills) of the office of the Divisional Railway Manager (Works), Secunderabad Division. The deponent further stated that O.S.(Bills) did not bring to the notice of the concerned Officer about the receipt of the copy of judgment and decree in the said A.O.P. and also letters from the Advocate appeared in the matter.

12. In paragraph 6, it is averred that disciplinary action against O.S. (Bills) was set in motion and proper steps are taken to punish the delinquent employee. The appellant counsel placed the order dated 18.06.2021 of the office of DRM (works), Secunderabad, wherein the delinquent employee was imposed punishment of withholding of annual increment for a period of two years without cumulative effect.

13. In other words, reason assigned for inordinate delay of 1335 days is that the concerned Officer who received copy of the order passed by the Civil Court long ago, has not brought to the notice of the Railway Divisional Manager and he came to know about it only for the first time when they received a letter dated 27.10.2020 from the claimant.

14. However, the affidavit is silent as to how the concerned Officer was prosecuting the matter before the Civil Court. Merely because an Advocate is entrusted with the case, it does not mean, the party to the dispute can seek to absolve from his duty to monitor the progress and seek updates of the case. It cannot be believed that case filed in the year 2000 is simply ignored and not monitored by concerned officer of the appellant ti

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ll October, 2020 and no updates of the progress of the case were obtained by him. It is also relevant to note that the advocate promptly secured copy of the order and intimated the result of the case to the concerned officer and also claimed his fee. 15. The explanation that the concerned SO did not inform the Divisional Manager does not appear to be bonofide. It appears that the respondents are covering up their negligence and are trying to over come the delay in filing the appeal by throwing the blame on O.S. (Bills). The fact that only a minor penalty was imposed having very minimal impact on service conditions of employee would show that action was taken up only to cover up inordinate delay. He is made a scape goat. No other material is placed on record to show that the concerned S.O did not process the file and kept under his lock and key to confer under favour on the respondents. It was an eye wash exercise, halo, lacks sincerity in prosecuting the litigation. 16. When the delay is long, the burden is on the deponent to place before the Court all relevant facts sincerely and honestly leaving to the Court to decide the issue. 17. By their conduct, the appellants allowed rights to be crystallized in favour of the respondents. When delay is not satisfactorily explained, condoning the delay of 1335 days causes prejudice to the other side and is not just and equitable. 18. For the above said reasons, I.A.No.1 of 2021 is dismissed and consequently C.M.A.No.80 of 2021 is also dismissed. Miscellaneous applications, if any pending, stands dismissed.
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