Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., observed that, the right to claim maintenance under the Domestic Violence Act and those under Section 125 CrPC are not mutually exclusive i.e. the aggrieved person can seek interim maintenance before the Magistrate while also seeking permanent maintenance under Section 125 CrPC.

In the present matter, the petitioner and respondent 2 were husband and wife and multifarious litigation was going on between them, one before the MM under the Protection of Women from Domestic Violence Act, 2005 and the other before the Family Court under Section 125 CrPC.

Instant petition was preferred against the orders passed by the ASJ, Saket Court in an application preferred by respondent 2 under Section 5 of the Limitation Act against the order of the MM condoning a delay of three years and ninety-nine days in filing an appeal against the order.

Analysis and Decision

High Court observed that the present case appeared to be a case where different avenues for relief caused enough confusion, which both, the Family Court as well as the ASJ, tried to sort out.

“The D.V. Act is, without doubt a piece of welfare legislation, to protect the interests of women in a domestic relationship and shared household, against not just physical abuse but also emotional and financial abuse.”

Hence, the ASJ was right in dealing with the condonation of application in that perspective and not choosing to dismiss the appeal on procedural technicalities.

Law of Limitation and DV Act, both have to be balanced out.

Further, the Bench expressed that,

“No doubt, inordinate delay would vest certain rights in the opposite party but when it comes to the question of maintenance and welfare of family members protected by the D.V. Act, there can be no vesting of such rights that would result in the divesting of rights assured by a special piece of legislation.”

In the present matter, respondent 2 did not resort to dilatory tactics to file an appeal in order to harass the petitioner, instead, she continued to pursue her right to maintenance before the Family Court under Section 125 CrPC.

High Court noted that the Courts always held that “sufficient cause” under Section 5 of the Limitation Act, 1963 was elastic enough to be applied by the Courts in a meaningful manner, which subserved justice.

Elaborating further, the Court stated that the facts, as brought as the explanation for the delay, and the intent of the party seeking condonation as evidenced by the circumstances, would guide the court in the exercise of its discretion to condone the delay in family matters.

Settled Law

Under Section 482 CrPC, this Court will not act as a Court of appeal and only if perversity or non-application of mind is disclosed in the impugned order or the impugned order results in a grave miscarriage of justice, that the court would interfere with it in the exercise of these powers. Though the present case does not disclose any such circumstance.

Hence, in view of the above, the pending application was dismissed. [Jagmohan Kashyap v. Govt. of NCT of Delhi, 2022 SCC OnLine Del 1609, decided on 27-5-2022]


Advocates before the Court:

For the Petitioner:

Ashish Upadhyay, Advocate

For the Respondents:

Meenakshi Chauhan, APP for R-1/State

S.S. Wani and Hasnain Khwaja, Advocates, for R-2

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

The factual matrix of the case of the respondent/complainant is that the complainant was running an industry in the name of M/s. Nandini Modulars. The accused gave an undertaking to the complainant that he will discharge the amount of Rs.13, 58,921/- within 15 days and also issued four cheques as security to the said loan amount in favour of the complainant which when presented in bank were dishonoured due to ‘funds insufficient’. Hence, various legal notices were issued from time to time to make payment, but the accused did not comply with the notices. Hence, a complaint was filed wherein the Trial Court after considering both the oral and documentary evidence, convicted the petitioners. Aggrieved by which, an appeal was preferred before the Appellate Court and a contention was raised regarding the complaint being barred by limitation and no application was filed before the Trial Court and thus the very initiation of the proceeding against the petitioners is erroneous and an error has been committed in convicting the petitioners. The Appellate Court dismissed in view of the delay and remanded the matter to consider the same afresh by giving an opportunity to the complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition was filed before this Court.

Counsel for petitioner Mr. Chethan AC submitted that the order passed by the Appellate Court in setting aside the judgment of the Trial Court and remanding the matter to consider afresh giving an opportunity to file an application for condonation of delay is not permissible under law and hence, it requires interference of this Court and set aside the order of remand and direct the Appellate Court to consider the matter on merits with regard to the conviction and sentence order passed for the offence punishable under Section 138 of Negotiable Instruments Act i.e. N.I. Act by the Trial Court.

Counsel for respondent Mr. Ramesh P Kulkarni submitted that no application is filed before the Trial Court for condonation of delay and the Trial Court after confirming the same on perusal of the entire order sheet gave an opportunity since for the first time, the question of delay is raised in the Appellate Court. Hence, the Appellate Court has not committed any error in setting aside the judgment of conviction and sentence and remitting the matter for fresh consideration and in giving an opportunity to file the application.

The Court observed that admittedly no application was filed before the Trial Court along with the complaint for condonation of delay. The material discloses that there is a delay of seven days in filling the complaint. It is not in dispute that the proviso is made in N.I. Act under Section 142(b) to condone the delay, if any, in filing the complaint. On perusal of the order of the Appellate Court, it is clear that an application is filed before the Appellate Court and also it is not in dispute that the delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. If delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay.

The Court remarked that an amendment is brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration. When the issue of limitation was raised before the Appellate Court, immediately the complainant filed an application before the Appellate Court for condonation of delay and the Appellate Court concluded that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has to be dealt with by the Trial Court and the same is in accordance with the judgment of the Appellate Court.

The Court has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court.

The Court thus held “I am of the opinion that the Appellate Court has not committed any error in setting aside the judgment and directing the complainant to file necessary application to condone the delay and the Trial Court by giving an opportunity to the petitioners to consider the said application.”

[A Seating v. Nandini Modulars, 2022 SCC OnLine Kar 725, decided on 08-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigants, S.M. Subramaniam, J., remarked that,

Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.

Petitioner was a senior citizen and suffering from ailments and hence, could not come over to Madurai and make arrangements for filing appeal.

Petitioner’s Counsel stated that the appeal was presented to the Court as early as on 31-7-2008, but the appeal papers could not be traced out in the office of the Court for long years as the papers were returned.

Analysis, Law and Decision

The entire case bundle revealed that there was no proof to establish that the appeal was filed on 31-7-2008.

High Court stated that,

Mere affixing a seal of the Madras High Court is insufficient as such filing of papers must be registered in the appropriate register maintained by the Registry.

Bench expressed that,

Uncondonable delay cannot be condoned in a routine manner. Law of limitation is substantive.

Elaborating the reasoning, High Court added that the Courts are vested with the power of discretion to condone the delay, that does not mean that enormous delay in instituting the suit or appeal is to be condoned mechanically.

Though, if the reasons are candid and convincing, then the Courts are empowered to exercise its power of discretion for the purpose of condoning the delay.

Time limits

Question may arise about the purpose and object of the law of limitation as the refusal of condonation of delay sometimes causes denial of rights to the litigants. However, there is a definite purpose for the prescription of the period of limitation for the institution of litigations/appeals.

The Bench also added that,  If any citizen of our great Nation is allowed to exercise his right at his whims and fancies without reference to the law of limitation, circumstances may arise that the rights of other fellow citizens are prejudiced or infringed. Rights cannot be exercised in an unguided manner.

Any citizen, who slept over his right, cannot wake up one fine morning and knock the doors of the Court for redressal of his grievances

Adding to the above analysis, Court stated that, Exceptions can never be adopted as a rule and they are to be exercised exceptionally and condoning long delay in a mechanical manner by the Courts cannot be considered as a good practice.

Imposing Heavy Costs

Costs cannot be in terms with reference to the number of days of delay. It is not an arithmetic principle, where long delay is to be condoned with heavy costs and meagre delay is to be condoned with meagre costs. Such a principle is opposed to public policy and therefore, this Court is not prepared to accept such a concept of imposing heavy costs for condoning enormous delay by violating the law of limitation, which is substantive and also the legal principles to be followed.

Lastly, the High Court held that,

If the delay is about three months or upto five or six months, the Courts may take a lenient view, but not in respect of longer delay.

Hence, the Court declined to condone the delay of 2575 days in filing the appeal. [T Lakshmi v. M. Vasantha, 2022 SCC OnLine Mad 1406, decided on 30-3-2022]


Advocates before the Court:

For Appellants: Mr A.C. Arun Kumar

Case BriefsSupreme Court

Supreme Court: In a case where the Andhra Pradesh High Court had condoned a delay of 1011 days even though no sufficient cause was shown explaining the delay, the bench of MR Shah* and BV Nagarathna, JJ has held that the High Court has not exercised the discretion judiciously.

Factual Background

  • The appellant herein – original plaintiff filed a civil suit for permanent injunction against the respondents herein – original defendants.
  • Trial Court dismissed the said suit by judgment and decree dated 23.04.2016.
  • First Appellate Court allowed the suit by quashing and setting aside the judgment and decree passed by the Trial Court, by judgment and decree dated 01.02.2017.
  • Original defendants – respondents herein applied for the certified copy of the judgment and order on 04.02.2017. The same was ready for delivery on 10.03.2017.
  • After a period of approximately 1011 days, the respondents herein – original defendants preferred the Second Appeal before the High Court. Application to condone the delay was also filed .
  • By the impugned order, the High Court has condoned the delay of 1011 days in preferring the Second Appeal, which is the subject matter of appeal before this Court.
  • While condoning the delay, the High Court has observed as under:

“… when there are certain questions, which require a debate in the second appeal, it is not necessary that this matter be rejected at this stage, without inviting a decision on merits. lf the delay is condoned though enormous, what happens at best is to give an opportunity to the parties to canvass their respective case. Since this question being of procedure, the attempt of the court should be to encourage a healthy discussion on merits than rejecting at threshold. Viewed from such perspective, accepting the reasons assigned by the petitioner, the delay in presenting this second appeal should be condoned.”

Analysis

Holding that the High Court has committed a grave error in condoning huge delay of 1011 days in preferring the appeal, the Cout noticed that as such no sufficient cause was shown by the respondents herein ¬ appellants before the High Court, explaining the huge delay of 1011 days in preferring the Second Appeal. Further, the High Court has also not observed that sufficient cause has been shown explaining the delay of 1011 days in preferring the Second Appeal.

Further, in the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, it was held that the High Court has not exercised the discretion judiciously.

On the reasoning given by the High Court, the Court noticed that the High Court has observed that if the delay is condoned no prejudice will be caused to the appellant as the appeal would be heard on merits and that there is no wilful negligence on the part of the respondents herein nor it suffers from want of due diligence. However, from the averments in the application for condonation of delay, the Court held that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein – appellants before the High Court in filing such a belated appeal.

It was, hence, held that,

“The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High   Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane.”

[Majji Sannemma v. Reddy Sridevi, 2021 SCC OnLine SC 1260, decided on 16.12.2021]


Counsel: Advocate Siddhartha Srivastava for respondents


*Judgment by: Justice MR Shah

Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge-05, while addressing the present matter, expressed that,

A litigant who takes liberty with court procedure should anticipate the necessary consequences.

a stern message is required to be sent to the litigants who indulge in frivolous and vexatious litigation as such litigation not only clogs arteries of justice delivery system but also deprives genuine litigants of their fundamental right of speedy trial.

It was observed that no application was moved by revisionist under Section 5 of the Limitation Act seeking condonation of delay in filing present revision petition, challenging the orders passed by the trial court.

Factual Matrix

A complaint alleging commission of an offence under Section 138 of the Negotiable Instruments Act was filed by revisionist/complainant with the allegation that respondent had issued a cheque for an amount of Rs 5 lakhs in discharge of their legal liability. On presentation of the said cheque, it got dishonoured for reasons ‘insufficient funds’. Respondent did not make payment despite service of notice due to which the complaint under provisions of NI Act was filed.

Last order of the trial court was passed on 4-12-2017, whereas the instant revision petition came to be filed on 19-3-2018. The limitation period as per Article 131 of Schedule to Limitation Act, is 90 days from the date of impugned order (s).

Therefore, in view of the above, the instant revision was filed beyond the limitation period. There was no application for condonation of delay or a whisper about the instant petition being filed beyond period of limitation.

“…law aids the vigilant and not the indolent.”

Settled Law

On expiry o period of limitation, a valuable right accrues in favour of other side and same cannot be defeated in a routine manner and existence of discretion by court for condoning the delay. If the delay is not properly, satisfactorily and convincingly explained, court cannot condone delay merely on asking of aggrieved parties.

Analysis, Law and Decision

Court held that the present revision was hopelessly time-barred with regard to impugned orders.

Bench before parting with this Order, expressed its anguish and was appalled by the insidious and cavalier approach of the revisionist.

In Court’s view, liberal access to justice should not be construed by anyone as a mean to lead chaos and indiscipline and frivolous petitions should be penalized with heavy cost. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly.

Further, Court stated that

It is only then the courts would be in a position to resolve genuine causes in a time bound manner and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances and not to frivolous petitions like the present one.

While dismissing the present revision, cost of Rs 1 lakhs were imposed for the mischievous approach. [Madhulika Tripathi v. Logix Corporate Solution (P) Ltd., Revision Petition No. 207 of 2018, decided on 22-11-2021]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC):  Expressing its opinion of ‘Condonation of Delay’, Coram of C. Viswanath (Presiding Member) and Justice Ram Surat Ram Maurya (Member) dismissed the present appeal calling it an abuse of process of law.

Instant appeal was filed against the decision of the State Consumer Disputes Redressal Commission. Further, along with the appeal, an application for condonation of delay of 13 years was also filed by the appellant.

Section 14 of the Limitation Act 

“14 Exclusion of time of proceeding bona fide in court without jurisdiction. —

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.— For the purposes of this section,—

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; 

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; 

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”

 It was noted that the Opening sentence of Section 14 of the Limitation Act says “exclusion of time of proceeding bona fide in court without jurisdiction.”

In the present matter, Opposite Party (OP) tried to take undue benefit of Section 14 of the Act and not act bonafidely. Appellant had malafide intention to evade implementation of the order passed by the State Commission.

Further, Supreme Court has held that a party who has not acted diligently or remains inactive is not entitled to condonation of delay

Elaborating further on condonation of delay, Court observed that Condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation.

Supreme Court in the matter of Ram Lal v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 has held as under:

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” 

Burden of showing delay is on whom?

Coram stated that the burden is on the applicant to show that there was sufficient cause for the delay.

In the Supreme Court decision of Anshul Aggarwal v. NOIDA, (2011) 14 SCC 578, Supreme Court warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act.

In a recent judgment the Supreme Court observed that condonation of delay would depend on the background of each and every case, and routine explanation would not be enough.

Hence, in the present matter, appellant’s submission that he got the knowledge of the impugned order on 31-01-2017 was nothing but an attempt to mislead the Court.

Therefore, the present first appeal was just an abuse of process of law. [Suranjan Biswas v. Ashoke Kumar Nath, FA No. 1005 of 2019, decided on 15-11-2021]


Advocates before the Commission:

For the Appellant: Ramdulal Manna, Advocate

Case BriefsSupreme Court

Supreme Court of India: The Bench of M.R. Shah and Aniruddha Bose, JJ., observed that,

“Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitation.”

Aggrieved and dissatisfied with impugned order passed by the National Company Law Appellate Tribunal by which NCLAT refused to condone delay of 44 days in preferring the appeal against the order passed by the National Company Law Tribunal rejecting the claim of the appellant. Appellant has preferred the present appeal.

Factual Background

State Bank of India (SBI) had initiated the insolvency proceedings before the NCLT under Section 7 of the Insolvency and Bankruptcy Code, 2016 against Dunar Foods Limited (Corporate Debtor) on the ground that Corporate Debtor had taken credit limits by hypothecating the commodities kept in the warehouses of the appellant.

It was stated that there was a delay of 44 days in preferring the appeal before NCLAT as the said appeal was required to be filed within a maximum period of 45 days (30 days + 15 days). However, there was a further delay of 44 days beyond a total period of 45 days.

Therefore, considering Section 61(2) of IBC which provides for powers to the Appellate Tribunal to condone delay of only 15 days which it can condone over the period of 30 days, if there is a sufficient cause, by impugned order, the Appellate Tribunal dismissed the appeal on the ground that the tribunal had no jurisdiction to condone the delay beyond 15 days and thereby the appeal was barred by limitation.

Analysis, Law and Decision

Bench noted that the appellant had applied for the certified copy of the order passed by the adjudicating authority after a delay of 34 days. Hence the said copy of the order was applied beyond the prescribed period of limitation i.e. beyond 30 days.

As the Appellate Tribunal can condone the delay up to a period of 15 days only, the Appellate Tribunal refused to condone the delay which was beyond 15 days from completion of 30 days, i.e., in the present case delay of 44 days and consequently dismissed the appeal.

 Hence, the appellate tribunal did not commit any error.

Further, the Court stated that in a case there may arise a situation where the applicant may not be in a position to file the appeal within a statutory period of limitation and even within the extended maximum period of appeal which could be condoned owing to genuineness, viz., illness, accident, etc. However, Parliament has not carved any exception of such a situation.

“…courts have no jurisdiction and/or authority to carve out any exception. If the courts carve out an exception, it would amount to legislate which would in turn might be inserting the provision to the statute, which is not permissible.”

In the decision of Popat Bahiru Govardhane v.  Special Land Acquisition Officer, (2013) 10 SCC 765, this Court has observed and held that it is a settled legal position that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute so prescribes.

Further, in the decision of this Court in Oil & Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited, (2017) 5 SCC 42, the question was with respect to delay beyond 120 days in preferring the appeal under Section 125 of the Electricity Act and the question arose whether the delay beyond 120 days in preferring the appeal is condonable or not. After considering various earlier decisions of this Court on the point and considering the language used in Section 125 [2] of the Electricity Act which provided that delay beyond 120 days is not condonable, this Court has observed and held that it is not condonable and it cannot be condoned, even taking recourse to Article 142 of the Constitution.

Hence, Supreme Court held that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.

Conclusion 

“…considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days.”

In view of the above discussion, the appeal failed and was dismissed. [National Spot Exchange Ltd. v. Anil Kohli, 2021 SCC OnLine SC 716, decided on 14-09-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has held that an appeal under section 37(1)(c) of the Arbitration and Conciliation Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.

The Court was hearing an appeal arising out of a certificate issued under Article 133 read with Article 134A of the Constitution of India by the High Court of Delhi thereby giving rise to the question as to whether a learned single Judge’s order refusing to condone the Appellant’s delay in filing an application under section 34 of the Arbitration Act, 1996 is an appealable order under section 37(1)(c) of the said Act.

Interpreting Section 37(1)(c), the Court took note of the fact that the expression “setting aside or refusing to set aside an arbitral award” has to be read with the expression that follows – “under section 34”. Section 34 is not limited to grounds being made out under section 34(2).

As per section 34(1), an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). Such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned.

“Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under section 37(2)(a), an appeal lies when a plea referred to in sub-section (2) or (3) of section 16 is accepted.”

The Court, hence, highlighted that the Legislature, when it wished to refer to part of a section, as opposed to the entire section, did so.

“Contrasted with the language of section 37(1)(c), where the expression “under section 34” refers to the entire section and not to section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under section 34(3) gets further strengthened.”

Further, so far as section 37(1)(a) is concerned, where a party is referred to arbitration under section 8, no appeal lies. This is for the reason that the effect of such order is that the parties must go to arbitration, it being left to the learned Arbitrator to decide preliminary points under section 16 of the Act, which then become the subject matter of appeal under section 37(2)(a) or the subject matter of grounds to set aside under section 34 an arbitral award ultimately made, depending upon whether the preliminary points are accepted or rejected by the arbitrator.

It is also important to note that an order refusing to refer parties to arbitration under section 8 may be made on a prima facie finding that no valid arbitration agreement exists, or on the ground that the original arbitration agreement, or a duly certified copy thereof is not annexed to the application under section 8.

“In either case, i.e. whether the preliminary ground for moving the court under section 8 is not made out either by not annexing the original arbitration agreement, or a duly certified copy, or on merits – the court finding that prima facie no valid agreement exists – an appeal lies under section 37(1)(a).”

Likewise, under section 37(2)(a), where a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is made out, an appeal lies under the said provision, as such determination is final in nature as it brings the arbitral proceedings to an end. However, if the converse is held by the learned arbitrator, then as the proceedings before the arbitrator are then to carry on, and the aforesaid decision on the preliminary ground is amenable to challenge under section 34 after the award is made, no appeal is provided.

The Court, hence, concluded,

“Undoubtedly, a limited right of appeal is given under section 37 of the Arbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove.”

[Chintels India Ltd. v. Bhayana Builders Pvt. Ltd.,  2021 SCC OnLine SC 80, decided on 11.02.2021]


*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearances before the Court by:

For Appellant: Advocate Rajshekhar Rao

For Respondent: Senior Advocate Mukul Rohatgi

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A. Hariprasad J., while hearing a revision petition, set aside the order passed by the Rent Control Appellate Authority, Kozhikode on the application filed under Section 5 of the Limitation Act and remitted the matter to be considered on merits as expeditiously as possible.

Revision petitioner (tenant) was sought to be evicted in RCP No. 80 of 2014 before the Rent Control Court, Kozhikode. The tenant was set ex parte in the proceedings. He filed an application for setting aside the ex parte order of eviction with a petition under Section 5 of the Limitation Act to condone delay of 145 days. The said application was dismissed by the Rent Control Court, finding that there is no sufficient cause to condone the delay. Thereafter, the tenant approached the Rent Control Court Appellate Authority, Kozhikode, with RCA No. 146 of 2017. The Rent Control Appellate Authority referring to some precedents, held that the Rent Control Court has no power to condone the delay by invoking Section 5 of the Limitation Act.

The Court herein referred to the judgment pronounced by the Full Bench in Faisal v. Vikas Chacko, 2020(6) KLT 722, wherein it was found that the Rent Control Court is having power under Section 5 of the Limitation Act to condone delay, if sufficient cause was shown. Placing reliance on the same, Court set aside the order by the appellate authority and directed for time-bound disposal.[K.K. Hamsa v. Athikottu, 2021 SCC OnLine Ker 383, decided on 22-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Bench of Dinesh Singh (Presiding Member) observed that:

“Consumer has the right to know, before he exercises his choice to patronize a particular retail outlet, and before he makes his selection of goods for purchase, that additional cost will be charged for carry bags, and also the right to know the salient specifications and price of the carry bags.”

In the present matter, petitioner, Big Bazaar (Future Retail Ltd.) was the Opposite Party before the District Forum.

Condonation of Delay

The petition was filed with self-admitted delay of 60 days and the reasons laid down for condonation of delay were with regard to the managerial inefficiency and perfunctory and casual attitude to the law of limitation.

Though the above-stated reasons were illogical and unpersuasive, yet in the interest of justice, delay was condoned in light of providing fair opportunity.

Issue

Charging additional cost (Rs 18 in this case) for ‘carry bags’ to carry the goods purchased by the complainant was concluded as an unfair trade practice on the part of OP by the two Fora below.

hence, OP Co. was directed to refund the cost of ‘carry bags’ and pay compensation of Rs 100 along with the cost of litigation which was Rs 1100 and Rs 5000 to be deposited in the Consumer Legal Aid Account.

Revision Petition

The instant revision petition was filed by the OP Co. under Section 58(1)(b) of the Consumer Protection Act, 2019 before this Commission.

[The jurisdiction of this Commission under both sections i.e. Section 21(b) of the Act 1986 and Section 58(1)(b) of the Act 2019 is the same (the articulation in both is identical)]

Bench noted the fact that earlier OP was providing ‘carry bags’ made of polythene without charging additional costs and later when it started providing cloth carry bags it started charging additional cost.

In light of the above, the Commission expressed that:

Prominent prior notice / signs / announcement / advertisement / warning to the consumers, before the consumers exercised their choice to make their purchases from the outlets of the Opposite Party Co., that additional cost will be charged for carry bags, was not there.

In the present case, the consumers were not allowed/were not in a position to/did not have prior notice or information to take their own ‘carry bags’. In fact, after the purchase was completed and at the time of making the payment, they were being charged additionally for the cost of ‘carry bags’.

Fora Below

The Forums below appraised the case and returned with concurrent findings of deficiency and unfair trade practice.

Notice issued by Co-Ordinate Benches

The argument made by Senior Counsel, in the hearing on admission on 01-12-2020, that in “similar” cases of other traders notice has been issued by co-ordinate benches of this Commission, is not tenable.

Mere issuance of notice by a co-ordinate bench in “similar” cases of other traders is not a binding precedent.

Cloth Carry Bags

Carry bags of undisclosed specifications were forced on the consumers at the price as fixed by the Opposite Party Co., the consumers were forced to accept the carry bags, of undisclosed specifications, at the price fixed.

Adding to the above, Bench stated that a mere notice at the payment counter or consumer being informed at the payment counter that additional cost will be charged for ‘carry bags’ after the purchase from the store concerned has been made, should not be the case.

“It also cannot be that carry bags of (undisclosed) specifications and of price as fixed by the Opposite Party Co. are so forced on the consumer.

Such notice or information at the time of making payment not only causes embarrassment and harassment to the consumer and burdens him with additional cost but also affects his unfettered right to make an informed choice of patronizing or not patronizing a particular outlet at the initial stage itself and before making his selection of goods for purchase.”

Therefore, the Commission found such practice of disclosing the price of carry bags at the payment counter to be unquestionably ‘unfair trade practice’ under Section 2(1)(r) of the Act 1986 [corresponding Section 2(47) of the Act 2019].

Right to Know

As a matter of Consumer rights, the consumer has the right to know that there will be an additional cost for ‘carry bags’ and also to know the salient specifications and price of the carry bags, before he exercises his choice of patronizing a particular retail outlet and before he makes his selection of goods for purchase from the said retail outlet.

Commission in very clear words expressed that:

“…arbitrarily and highhandedly deviating from its past practice, deviating from the normal, not giving adequate prominent prior notice or information to the consumer before he makes his choice of patronizing the retail outlet, and before he makes his selection for purchase, imposing the additional cost of ‘carry bags’ at the time of making payment, after the selection has been made, forcing carry bags without disclosing their salient specifications at price as fixed by the Opposite Party Co., putting the consumer to embarrassment and harassment, burdening the consumer with additional cost, in such way and manner, is decidedly unfair and deceptive.”

Hence, the Commission directed OP to discontinue its unfair trade practice of arbitrarily and highhandedly imposing an additional cost of carry bags on the consumer at the time of making payment, without prominent prior notice and information before the consumer makes his choice of patronizing its retail outlets and before the consumer makes his selection of goods for purchase, as also without disclosing the salient specifications and price of ‘carry bags’.

The above order is made under Section 39(1)(g) of the 2019 Act.  However, the Commission made it explicitly clear that:
“It is made explicit that the critique apropos the Opposite Party Co. and the order under Section 39(1)(g) of the Act 2019 to the Opposite Party Co. have been made inter alia considering that it is a company with the wherewithal and inter alia considering the way and manner in which it conducts its business of retail. As such, nothing in the critique and in the order made under Section 39(1)(g) of the Act 2019 can be (mis) construed to be made applicable to differently / lesser placed traders, the applicability can only be made on similarly / better-placed traders, similarly / better situate, having similar way and manner of conducting their business.” [Big Bazaar (Future Retail Ltd.) v. Ashok Kumar, 2020 SCC OnLine NCDRC 495, decided on 22-12-2020]


Advocates who appeared before the Commission:

For the Petitioner: Sudhir K. Makkar, Senior Advocate along with Saumya Gupta, Advocate and Yogita Rathore, Advocate.

Case BriefsSupreme Court

Supreme Court: The State of Madhya Pradesh yet again irked the Court by filing a Special Leave Petition after a delay of 588 days, prompting the bench of SK Kaul and Hrishikesh Roy, JJ to say,

“The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible!”

Earlier, on October 15, 2020, in case of an inordinate delay of 663 days by the State of Madhya Pradesh in filing a Special Leave Petition, the bench of SK Kaul and Dinesh Maheshwari, JJ had said,

“it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the  Governments to walk in when they choose ignoring the period of limitation prescribed.”

In the present case, the Court was told  that on 05.01.2019, the Government advocate was approached in respect of the judgment delivered on 13.11.2018 and the Law Department permitted filing of the SLP against the impugned order on 26.5.2020. Surprised at the fact that the Law Department took almost about 17 months’ time to decide whether the SLP had to be filed or not, the Court said,

“What greater certificate of incompetence would there be for the legal Department!”

The Court, hence, directed the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the legal Department as “it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation.”

Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, the Court imposed a cost of of Rs.35,000/- to be deposited with the Mediation and Conciliation Project Committee within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time.

Deputy Advocate General has also been cautioned that for any successive matters of this kind the cost will keep on going up. The cost imposed in the October 15, 2020 order was Rs. 25, 000.

The Court concluded by stating that if the present order is not complied with, the Court will be constrained to initiate contempt proceedings against the Chief Secretary.

[State of Madhya Pradesh v. Chaitram Maywde, 2020 SCC OnLine SC 875, Order dated 27.10.2020]


Also read

Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed

Case BriefsSupreme Court

Supreme Court: Irked by the inordinate delay of 663 days by the State of Madhya Pradesh in filing a Special Leave Petition, the bench of SK Kaul and Dinesh Maheshwari, JJ said,

“… it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed.”

Sending a signal, the Court wrote that where there are such inordinate delays that the Government or State authorities must pay for wastage of judicial time which has its own value. Directing the State to deposit a cost of Rs. 25000 with the Mediation and Conciliation Project Committee within 4 weeks, the Court said that such costs can be recovered from the officers responsible.

The reason accorded for the delay by the State Government was “due to unavailability of the documents and the process of arranging the documents” and that “bureaucratic process works, it is inadvertent that delay occurs”.

The Court noticed that that in the present case a preposterous proposition was sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by.

“If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.”

The Court further said that

“… if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.”

Terming such cases as “Certificate Cases”, the Court said that the object of such cases appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed.

“The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.”

The Court concluded by stating that if the present order is not complied with, the Court will be constrained to initiate contempt proceedings against the Chief Secretary.

Earlier on July 27, 2020, in an application filed by State of Odisha, seeking condonation of delay of 587 days, the 3-judge bench of SK Kaul, Ajay Rastogi and Aniruddha Bose, JJ had imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

In Office of the Chief Post Master General v. Living Media India Ltd., (2012) 3 SCC 563, all the government bodies, their agencies and instrumentalities were informed that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The bench of P. Sathasivam and J. Chelameswar, JJ said,

“The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

[State of Madhya Pradesh v. Bherulal, 2020 SCC OnLine SC 849, decided on 15.10.2020]

Case BriefsSupreme Court

Supreme Court: In an application filed by State of Odisha, seeking condonation of delay of 587 days, the 3-judge bench of SK Kaul, Ajay Rastogi and Aniruddha Bose, JJ imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

“The Department should hold an enquiry, fix responsibility and recover the cost from the delinquent officer and file the certificate of recovery in this Court. The needful be done within four weeks.”

The Court observed that the application for condonation of delay reflected a saga of movement of file from one department to the other with no cogent explanation why for months together files have been detained in the department.

“These are what we categorise as “certificate cases” filed by the departments to obtain an order of dismissal from the Supreme Court so that they can go back and say that they have made all endeavours to limit the loss to the State.”

The Court, hence, imposed a cost of Rs. 50,000/- to be deposited with the Supreme Court Advocates on Record Welfare Fund.

[State of Odisha v. Dilip Kumar Pratihari, 2020 SCC OnLine SC 603 , order dated 27.07.2020]

Case BriefsSupreme Court

Supreme Court: In a case where, for the enormous delay of 1697 days in filing, the Government said that there was a public interest involved and that there were certain other matters pending, the bench of SK Kaul amd KM Joseph, JJ said that the Government doesn’t have the right to walk into this Court as and when they want even if other matters are pending.

It said,

“All we can say that if there is public interest involved then the Government has been grossly negligent to look after public interest.”

The application for condonation of delay showed that in the worst case scenario, with all its delays, the matter was ready for filing of the SLP on 18.02.2015 whereafter a certified copy of the order was applied later on and thereafter we straightaway come about 2½ years later on 23.08.2018.

Hence, stating that there was no merit in the application, the Court said that if the Government has suffered any consequences thereof monetarily or otherwise, it can recover financial recompensation from the persons responsible for causing loss to the Government.

The Court, hence, dismissed the SLP as barred by time.

[State of West Bengal v. Soroj Kumar Mondal, 2020 SCC OnLine SC 532 , order dated 19.06.2020]

Business NewsNews

It has been observed that due to applicability of additional fee on late filing, which in case of inordinate delay could actually become a financial burden, a large number of Limited Liability Partnerships (LLPs) have remained non-compliant, mainly on account of their inability to pay late fees for the cumulative period of delay.

As part of the Government’s constant efforts to promote ease of doing business, it has been decided to give a One-time relaxation in additional fees to the defaulting LLPs to make good their default by filing pending documents and to serve as a  compliant LLP in future.

Accordingly, the Central Government has decided to introduce a scheme namely “LLP Settlement Scheme, 2020”, by allowing a One-time condonation of delay in filing statutorily required documents with the Registrar.

LLPs, that wish to avail themselves of the scheme, may file the pending documents/Forms and make good the defaults, to gain immunity from prosecutions for such defaults.

The Scheme shall come into force on the 16th March, 2020 and shall remain in force up to 13th June, 2020.  It would be applicable to a “defaulting LLP” for filing overdue documents, which were due for filing till 31st October, 2019 on a payment of a nominal additional fee of Rs 10/- per day for the period of delay, in addition to any fee as is payable for filing of such document or return, subject to a maximum amount of Rs. 5,000/- as additional fee per document.

The Scheme shall apply to the filing of the following documents:

  1. Form-3- Information with regard to limited liability partnership agreement and changes, if any, made therein;
  2. Form-4- Notice of appointment, cessation, change in name/ address/designation of a designated partner or partner and consent to become a partner/designated partner;
  3. Form-8- Statement of Account & Solvency (Annual or Interim); and
  4. Form-11- Annual Return of Limited Liability Partnership (LLP).

The Scheme is being introduced in pursuance of the Government’s objective of providing greater Ease of Living to the citizens of the country and is expected to provide significant relief and a window of opportunity for LLPs to abide by the Law & conduct business accordingly.


Ministry of Corporate Affairs

[Source: PIB]

[Press Release dt. 04-03-2020]

Case Briefs

Appellate Tribunal (FEMA): Justice G.C. Mishra (Acting Chairman) allowed the application for the condonation of delay in respect to the substitution of the legal representatives (LRs) of the managing director of the deceased Ramesh Babu Muppalaneni of the company Sanjay Agro Traders (P) Ltd.

 In the instant case, the deceased having died on 26-10-2017, the appellant failed to file an application for the substitution of his legal heirs. Rather the application for its condonation of delay was filed on 27-05-2019, which prayed to condone a delay of 296 days only though there was a delay of 370 days.

The counsels for the appellant, S.K. Vasudeva Rao and Rabin Majumder pleaded that the delay in filing the application for the substitution of the LRs was not intentional but it happened due to the communication gap between the deceased’s family and the counsel about the death of the deceased which reached the counsel much later on 05-09-2018 as the family was much disturbed from their irreparable loss. Moreover, on 06-09-2018 itself, the Tribunal allowed the appellant to file an appropriate application in that regard when he submitted for it.

The counsel on behalf of the respondent, Aagam Kaur, however, contended that even though the family was in grief, the advocate could have moved an application for bringing the legal heirs on record. Also, there seemed no reasonable cause as to how he was prevented from moving a timely application. The Counsel also placed reliance on the judgment of the case N. Balakrishnan v. M. Krishnanmurthy, (1998) 7 SCC 123 wherein it was clearly held that the law of limitation fixes a lifespan for such legal remedy for the redressal of the legal injury so suffered. 

In view of the above case, the Tribunal allowed the application of condonation of delay in filing the applications for substitution of legal heirs subject to payment of Rs 25000 in each appeal to be paid within six weeks from the date of the order. 

Observing “sufficient cause” under Section 5 of the Limitation Act, 1963 the Court noted the concept of reasonableness as brought out by the case Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.[S. Ramesh v. Special Director Directorate of Enforcement, Hyderabad, MP-FE-476/HYD/2019(COD) IN FPA-FE-300/HYD/2009, decided on 24-12-2019]

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]

Patna High Court
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]