Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. rejected an application for seeking condonation of delay in the filing review petition.

The facts of the case were that the petitioner filed an RTI application against the order wherein respondent have denied filling up of 36 vacancies under the ST category or allotment of the same to a Physically Handicapped candidate in ST Category. When no response was received to the RTI application, the first appeal was made by the applicant, in which no order was passed. Thereafter the second appeal was preferred which was disposed of through an order by stating that no post was filled under ST category from Handicapped person.

Mazhar Ali Khan, counsel for the applicant stated that on obtaining the copy of the order, he could not reach the court as at that time summer vacations were going on. It was further stated that the statutory period of 30 days is prescribed under the Limitation Act as well as High Court rules and there is a delay of 446 days in filing the review petition. It was further submitted that there was a cause of action after the order of the second appeal under the RTI Act and the delay can be condoned as it was otherwise beyond the control of the petitioner.

The Court was of the opinion that the rules of limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner so as to save the system from anarchy. The Court added that the law of limitation fixes a life span for every legal remedy. It was further held that the applicant was gross negligent that the word sufficient cause was not used in the application. The court thus held that Law is also clear that each day after limitation time, is required to be explained by cogent means. It cannot be set aside on flimsy grounds and at the wish of applicant who remained all along negligent. Thus the application seeking condonation of delay along with review petition was dismissed by the Court.[Harish Chander v. State of J&K, 2019 SCC OnLine J&K 481, decided on 28-05-2019]

Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., condoned a delay of 50 days in filing the written statement.

As per facts of the case, in the suit filed by the respondent, the petitioner was served the summons on 10-07-2017; and on 12-8-2017, he sought time to engage a government counsel, who was eventually appointed and put in an appearance on 05-09-2017 and sought the extension of time to file written statement. However, there was a delay of fifty days in filing the same. The petitioner filed an application for condonation of delay but it was dismissed by the trial court. Aggrieved thereby, the petitioner filed the present appeal.

Susan Linhares, Additional Government Advocate appeared for the petitioner. Whereas, the respondents were represented by R.G. Ramani, Advocate.

Relying on Kailash v. Nanhku, (2005) 4 SCC 480, the High Court observed, “It is now well settled that the period fixed under Rule 1 Order 8 CPC is directory in nature and in a given case where a party shows sufficient cause, the delay can be condoned.” It was noted that in the present case, a draft of the written statement was sent to the department concerned for its approval which resulted in a delay of 50 days in filing the written statement. On an overall view of the matter, the Court found that petitioner showed a sufficient cause. As such, the petitioner was allowed and the impugned order was set aside. [Govt. of Goa v. Shankar Prabhakar Dalvi, 2019 SCC OnLine Bom 443, dated 12-03-2019]

Case BriefsHigh Courts

‘Vigilantibus, non-dermientibus, jura subveniunt’

(the law helps those who are watchful and not those who are asleep)

Delhi High Court: Vinod Goel, J., dismissed Delhi Waqf Board’s applications for condoning the delay of 21 years and restoring a revision petition.

Hashmat Nabi and Swathi, Advocates for the Waqf Board submitted that on 15-05-2018, the newly constituted management took notice of the disposal of the present petition after instructing its standing counsel to prepare a list of matters which have been disposed of. The petition was originally filed though Raman Kapur, Advocate; and B.D. Sharma, Advocate appeared for the Board from 1989 till 1994. However, after that, no appearance was made o behalf of the Board and therefore, the petition was dismissed for non-prosecution. In such background of the case, the application for condonation of 21 years’ delay along with the application for restoration of revision petition was filed.

At the outset, the High Court observed, “it is a well-settled principle of law that a litigant, whether it is an individual or a government body or any legal entity, it owes a duty to be vigilant of its rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against it or initiated at its instance.”Holding that the Board could not be permitted to blame the previous counsel after 21 years for not providing the case record, the Court stated, “it appears that the blame is being attributed to the previous counsel with a view to get the delay condoned. After filing the revision petition, the applicant cannot go off to sleep and wake up from a deep slumber after the passage of a long period of 21 years as if the court is a storage of the petitions filed by such negligent litigants. Simply because there is a change in the management cannot give sufficient cause to the applicant to file such an application for restoration after a long period of 21 years has elapsed.” Relying on N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the court reiterated, “the object of the law of limitation is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims.” In such view of the matter, the court did not find any merit in the applications and therefore dismissed them. [Delhi Wakf Board v. Mohd. Bi, 2019 SCC OnLine Del 7178, dated 25-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before a Division Bench of Amit Rawal and Arun Kumar Tyagi, JJ. against the impugned order passed by the Debts Recovery Tribunal-II, Chandigarh whereby an application for condonation of delay accompanied by Securitization Application was dismissed, being barred by 52 days.

Petitioner submitted that an order passed by this court held that DRT had jurisdiction to entertain an application for condonation of delay lest accompanied with Securitization Application. It was viewed that the explanation provided in the application was reasonable. The DRT should not have dismissed the application and decided the same in limine. The case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 was referred to wherein the principles applicable to an application for condonation of delay were given.

High Court observed that the securitization application filed against the measures taken under Section 13(4) of the SARFAESI Act was dismissed being barred by 52 days. DRT’s jurisdiction under S. 5 of the Limitation Act was not disputed and it should not have adopted harsh approach by not condoning the delay as per the principles laid down in Esha Bhattacharjee case. Therefore, the impugned order was set aside and the DRT (II), Chandigarh was directed to decide the case on merits. [Ajmer Enterprises v. Debt Recovery Tribunal, 2019 SCC OnLine P&H 4, decided on 04-01-2019]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J. allowed the condonation of delay as the sufficient cause stands justified.

The petitioner has filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 350 days caused in filing the criminal appeal against the judgment passed in the POCSO Act.

The Court observed, the words “Sufficient cause for not making application within the period of limitation” should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case following which substantial justice shall be advanced when the delay has not been due to the negligence on the part of the applicant. In nutshell, the decisive factor for condonation of delay is not the length of delay but sufficiency and satisfactory explanation.

Thus there was nothing on record which could deprive substantial justice to the applicant by way of statutory appeal as the explanation for delay does not smack mala fide as a resultant the condonation was allowed. [Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC OnLine Guj 2610, Order dated 01-10-2018]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed a writ petition challenging the order passed by the Additional District Judge, whereby the Appellate Court had dismissed the application under Section 5 of the Limitation Act for condonation of delay. 

The petitioners were aggrieved by this order and their counsel Mr Prasanna Ku. Parhi, contended that the delay was justified and the petitioners were prevented by sufficient cause in not filing the appeal on time and the Appellate Court had dismissed the same on an untenable and unsupportable ground. 

The seminal question that hinged for consideration was that whether an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was a decree or order. 

The Court placing reliance on the case of Fakira Mishra v. Biswanath Mishra, 2015 SCC OnLine Ori 313, held that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. [Jitendra Naik v. Radhyashyam Naik, 2018 SCC OnLine Ori 432, dated 10-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Sanjeev Kumar, J., dismissed the current writ petition invoked for quashing the order of the district judge whereby the appeal of the petitioner was held as non maintainable and the order passed by the Assistant Labour Commissioner regarding the payment of wages to the employees was upheld.

The facts of the case are that a few employees had filed for payment of their withheld wages. The application was filed much after the period of limitation, prescribed under the Payment of Wages Act. The application was accompanied by an application for condonation of delay. The Assistant Labour Commissioner while exercising the discretionary powers allowed the condonation application. The petitioner thus filed an appeal which was dismissed. The impugned order dismissing the appeal was under question here.

The Court upholding the decision of the District Judge and Assistant Labour Commissioner said that condonation of the delay is a discretionary order and had been passed by the Authority after considering the stand taken by the rival parties. It has taken note of the social welfare nature of the legislation, i.e., the Payment of Wages Act, which is enacted for the benefit of workers who are denied wages for the work they render by the employer by misusing their higher bargaining powers and fiduciary relationship. The petition was thus dismissed. [Division Forest Officer, Bandipora v. Assistant Labour Commissioner,2018 SCC OnLine J&K 955, decided on 04-12-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench of Tarlok Singh Chauhan, J., dismissed a revision petition filed against the order of the first appellate court, whereby the appeal filed by the petitioner was dismissed on the ground of delay.

The main issue that arose before the Court was whether the first appellate court was justified in rejecting the petitioner’s application for condonation of delay and resultantly dismissing his appeal.

The Court observed that it is a settled principle of law that in matters where a delay has been caused, the courts should generally adopt a liberal approach because sometimes refusal to condone delay might result into travesty of justice. The Court further observed that cause of substantial justice should be preferred over the technical consideration, however, the Court must also be vigilant and cautious because there is an increasing tendency of treating delay as a non-serious matter. The Court must look for bona fides of the person seeking condonation of delay and the conduct and behaviour of a party in approaching the appropriate forum, must be taken into account while considering an application for condonation of delay. This view is backed by the Supreme Court judgment in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.

The Court held that it is incumbent upon the party seeking condonation of delay to show sufficient cause which prevented the petitioner from filing the application within the statutory period. The Court held that even though the petitioner was aware of the outcome, she did not take any steps and it was only after a delay of 350 days that she filed an appeal before the appellate court. Hence, the lower courts had rightly rejected her appeal on the ground of delay. Resultantly, the Court dismissed the revision petition and upheld the order of lower court. [Sarla Devi v. Jagan Nath,2018 SCC OnLine HP 1541, order dated 30-10-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed against the order of District Judge whereby appellant’s application for condonation of delay in filing first appeal was dismissed.

There was a partition between the appellant and his two sisters. Originally, in 2004, after the partition, two-third of the property fell into the share of appellant; whereas, the sisters got one-sixth each. However, in view of the amendment in Hindu Succession Act in 2005, on an application filed by the sisters, the earlier decree was modified and now all the three parties got one-third share each. Aggrieved by the modification, the appellant had filed a review petition in 2012 which was dismissed in 2014. Within two months thereafter, the first appeal was filed along with the application for condonation of delay of 4 years and 30 days. The District Judge, however, dismissed the application holding that delay had not been satisfactorily explained. Aggrieved thus, the present appeal was filed.

The High Court was of the view that after modification of the preliminary decree, the appellant must have acted on advice of his advocate, who instead of filing an appeal, preferred the review petition. The law on the law on the point was not clear; modification in shares in a partition having been introduced first time. Since the review petition was held not maintainable, the appellant had a right to file the first appeal. It was observed as well settled law that if a party is litigating its cause before a wrong forum under a bona fide belief as per legal advice gives by his advocate, the delay occurred in such proceedings has to be considered for deciding an application for condonation of delay. This is recognized in Section 14 of the Limitation Act. Therefore, the High Court set aside the order impugned and directed the parties to appear before the first Appellate Court. The appeal was, thus, allowed. [Patherao Narsu Patil v. Gangubai A. Lad,  2018 SCC OnLine Bom 2892, dated 03-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge bench comprising of M.K. Hanjura, J. while dealing with an application for condonation of delay in filing a review petition, dismissed both the application as well as the petition on grounds of inordinate delay in filing the same.

Brief facts of the case are that in a writ petition filed by the petitioners, the Hon’ble Court made an observation with regards to engagement of 130 casual workers on the basis of an order dated 02-04-2012 and directed that the engagement of the petitioners also be considered. The instant review petition was filed for recalling the aforesaid order stating that since there was no order vide which 130 casual workers had been employed, therefore the question of providing similar treatment to the petitioners did not arise. The reason given for delay in filing the review petition was that as soon as the aforesaid anomaly came to the notice of petitioners, they sought advice from a senior counsel which led to a delay in filing the review petition and that the said delay was not intentional.

The  High court observed that the law of limitation has to be enforced with all its rigor and vigor. Section 5 of the J&K Limitation Act Samvat, 1995 stipulates that the applicant has to satisfy the court of sufficient cause for not preferring the application/ appeal/ review within the time period as prescribed in the statute.

Relying on the judgment of the Apex Court in Union of India v Nripen Sarma, (2013) 4 SCC 57 and Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy(2013) 12 SCC 649 the court noted that there was a reckless delay of 1230 days in filing the review petition and the sequence of the events which prompted the petitioners to file the review petition after a long delay of more than three years had not been accounted. Further, the court also relied on the judgment in Northern India Caterers v Lt. Governor Delhi, (1980) 2 SCC 167 and observed that the scope of a review petition is limited to dealing with an error apparent on the face of the record and it cannot be used as a forum to re-argue the matter.

On the aforesaid holdings, the court dismissed the petitioner’s application for condonation of delay and also dismissed the review petition. [Mohammad Akbar Lone v DG, Prasar Bharati,2018 SCC OnLine J&K 664, Order dated 28-09-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, Acting CJ. dismissed a petition filed for condonation of 50 days delay in filing appeals against the order of Motor Accident Claims Tribunal whereby compensation was awarded to the claimants.

The MACT (West Sikkim) had awarded certain amount of compensation to the respondent claimants. The appeal was preferred thereagainst by the petitioner but only after a delay of 50 days. The petitioner filed the instant petition for condonation of such delay citing various reasons. The High Court, however, was not inclined to allow the petition and condone the delay. The High Court referred to the Supreme Court decision in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649. The following principles were, inter alia, reiterated by the High Court which is to be kept in mind while deciding a petition for condonation of delay:

  • Court to be satisfied that the appellant was prevented by sufficient cause in preferring the appeal on time.
  • Appellant had to put forth bona fide grounds for delay besides establishing that the delay was not caused due to negligence.
  • Length of delay is not a consideration. Each case is distinguishable from the next.
  • ‘Sufficient Cause’ should be given a liberal interpretation to ensure that substantial justice is done.
  • It has to be kept in mind that expiration of period of limitation gives rise to a right in favour of a decree-holder; this right is accrued should not be lightly disturbed.

In the instant case, the High Court held that in the gamut of facts and circumstances put forth for the delay, it was but relevant to opine that the petition was filed with a nonchalant attitude reflecting negligence, inaction and lack of bona fides, and being devoid of merits. The petition, thus, did not deserve indulgence of the Court. Consequently, the Court was not inclined to exercise jurisdiction in favour of the petitioner. Accordingly, the petition was dismissed. [Shriram General Insurance Co. Ltd. v. Dik Bir Damai,2018 SCC OnLine Sikk 190, Order dated 17-09-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, Acting CJ. dismissed an application for condonation of 115 days’ delay in filing the appeal, filed under Section 173(1) of Motor Vehicles Act, 1988.

The appeal was to be filed against a decision of Motor Accident Claims Tribunal. However, there was a delay of 115 days in filing the appeal, the purported reason of which, according to the applicant, being the departmental procedure of approvals before filing an appeal. It was submitted that the delay was neither intentional nor willful.

The High Court perused Section 173 and observed that it was to be seen whether the applicant was prevented by sufficient cause from preferring the appeal in time. The grounds as taken by the applicant were considered by the Court, which then held that the conduct of the applicant cannot be said to be beyond reproach. The impugned judgment was pronounced ex parte as the applicant failed to appear before the MACT. Further, the file, while seeking the opinion of various officers of the Company, was sent from one desk to another. It was observed that ‘justice’ means justice to the applicant as well as the respondent. The Court held the conduct of the applicant to be lackadaisical and, hence, rejected the application filed by the applicant. [Shriram General Insurance Co. Ltd. v. Kezang Kazi, 2018 SCC OnLine Sikk 128, dated 03-07-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ., refused to condone a delay of 65 days in filing the appeal under Section 37 of Arbitration and Conciliation Act, 1996 which was consequently dismissed.

The appellant filed the said appeal against the order of the learned Single Judge who dismissed appellant’s objection to the award passed by the Arbitrator. However, there was a delay of 65 days in filing the appeal. The appellant sought condonation of such delay on the grounds that the appellant was a corporate body (a company) with a legal department and higher management. Every decision of filing an appeal is scrutinised by the higher management. It was stated that the appellant had preferred to take opinion from some counsels, and also made a self-analysis of the case. Thereafter, the facts were placed before the management who took the decision of filing the appeal. Thus, the appellant submitted, the delay was on account of bona fide reasons and not due to inaction or carelessness.

The High Court did not find favour with the submissions of the appellant. Referring to a few Supreme Court decisions, the High Court observed that while deciding an application under Section 5 of Limitation Act, the courts must adopt a liberal approach, provided there is no gross negligence, deliberate inaction or lack of bona fide imputable to the party seeking condonation of delay. Further, while considering the application seeking condonation of delay, the period of delay is not the criteria. A short delay may not be condoned in absence of an acceptable explanation while a large delay may be condoned if the explanation is satisfactory. In the instant case, the appellant was a private limited company with a legal department. The application for condonation of delay was highly casual in nature, it lacked material particulars and did not disclose sufficient cause for the condoning the delay. A bald statement of taking opinion from some counsels could not be taken as a sufficient cause. Holding thus, the High Court denied to condone the delay and dismissed the appeal. [Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd.,  2018 SCC OnLine Del 9559, dated 03-05-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A civil petition was decided by a Single Judge Bench comprising of Ajay Mohan Goel, J., wherein the application of the appellant praying to condone the delay of 2376 days in filing the appeal was dismissed.

The ground which appellant took in order to justify such delay in filing the appeal was that she was wrongly informed by her counsel that the matter was still pending in the court and that she came to know that her case stood dismissed only six months prior to the filing of this petition.

The High Court was not convinced by the explanation given by the appellant for such delay. The Court observed it to be a routine excuse which is given in an application for condonation of delay. The Court further observed that principle of limitation envisages that in case a person is not diligent in pursuing his legal remedy, then after the limitation period, though the right survives but remedy goes. The Court held that the power under Section 5 of Limitation Act to condone delay is not to be exercised in a mechanical manner and is only to be exercised if Court is convinced that the applicant was not negligent in pursuing his legal remedy and proceedings could not be initiated for the reasons beyond the control of the party concerned. In the instant case, the Court was not satisfied with the averments made in the application and consequently, the application was dismissed. [Runa Devi v. Singhu Ram, 2018 SCC OnLine HP 248, order dated 15.3.2018]

Case BriefsHigh Courts

High Court of Jammu and Kashmir: The Bench of Alok Aradhe J. recently addressed a revision petition wherein the petitioner challenged the decision of the trial court in allowing the application preferred by the respondent under Order 9 Rule 13 CPC.

The facts of the case are that the petitioner had filed a petition under Section 13 of the J&K Hindu Marriage seeking dissolution of marriage following which the respondent filed an application for transferring the proceeding to the Court of the Principal District Judge which was allowed and the parties had been directed to be present at the said Court on 20/10/2011. Further on, the petition was heard with the respondent proceeding ex parte subsequent to which an ex parte decree was passed. The petitioner had informed the army authorities about the dissolution of the marriage and the army authorities then went on to intimate the respondent about the decree of dissolution. Consequently the respondent had applied for extension of time in filing the application for setting aside the ex parte decree belatedly which was allowed by the trial court.

The counsel for the petitioner submitted that the Court should have appreciated the fact that the order for transferring the case was passed in the presence of both parties and that both parties had been directed to present themselves before the said Court on 20/10/2011. The counsel also contended that despite the authorities having informed the respondent about the dissolution, it took the respondent a period of 1 year to file an application seeking extension of time for filing the application. The last contention by the counsel for the petitioner was that the petitioner was not given any opportunity to file a reply or adduce any evidence in the proceeding under Order 9 Rule 13 CPC.

The counsel for the respondent on the other hand contended that the respondent had supported the order of the trial court and that the application seeking condonation of delay as well as the proceeding under Order 9 Rule 13 had been clubbed together and evidence had been recorded jointly in both the proceedings as was allowed in Manjeet Singh v. Manjeet Kour , 2001 SLJ 439 and in Darshana Devi v. Bodh Raj, 2014 (2) JKJ 585 [HC].

The Court held that the trial court should have first decided the application under Order 9 Rule 13 CPC and subsequently proceeded to deciding the application by recording the evidence separately. The Court held that severe injustice had been done to the petitioner by clubbing both the proceedings and recording the evidence. The Court agreed that the petitioner should have been allowed to lead evidence in the main proceeding which was initiated by the respondent and hence, suffered from an error apparent on the face of the record. The impugned order also suffered from jurisdictional infirmity which couldn’t be sustained in the eyes of the law. Hence, the impugned order was quashed. [Harjeet Singh v. Taranjeet Kour,  2017 SCC OnLine J&K 746, order dated 18.12.2017]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether Section 5 of the Limitation Act, 1963 can be invoked to condone the prescribed period of 30 days, under Section 30(1) of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) for preferring an appeal before the Tribunal, against an order of the Recovery officer, the 3-judge bench of Ranjan Gogoi and AM Sapre and Navin Sinha, JJ held that the prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer cannot be condoned by application of Section 5 of the Limitation Act.

Explaining the scope of Section 5 of the Limitation Act, the Court said that it provides that the appeal or application, with the exception of Order XXI, CPC may be admitted after the prescribed period, if the applicant satisfies the court that he has sufficient cause for not preferring the application within time. Considering this, the Court said that the pre-requisite, therefore, is the pendency of a proceeding before a court. The proceedings under the Act being before a statutory Tribunal, it cannot be placed at par with proceedings before a court. It was said:

“The fact that the Tribunal may be vested with some of the powers as a Civil Court under the Code of Civil Procedure, regarding summoning and enforcing attendance of witnesses, discovery and production of the documents, receiving evidence on affidavits, issuing commission for the examination of witnesses or documents, reviewing its decisions etc. does not vest in it the status of a Court.”

Stating that RDB Act is a special law where the proceedings are before a statutory Tribunal, the bench said

“the scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only.”

It was explained that the exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. Hence, the application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 does not arise. [International Asset Reconstruction Company of India Ltd. v. Official Liquidator of Aldrich Pharmaceuticals Ltd., 2017 SCC OnLine SC 1245, decided on 24.10.2017]

Case BriefsSupreme Court

Supreme Court: In an appeal preferred under Section 125 of the Electricity Act, 2003, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ held that the Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and hence, the delay cannot be condoned taking recourse to Article 142 of the Constitution.

In the present case, it was argued by the respondents that the appeal was barred by 71 days and hence, the Court erred in condoning the delay of 71 days in view of the language employed in Section 125 of the Act. Accepting the contention of the respondents, the Court noticed that as per Section 125 of the Act, this Court, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period of 60 days from the date of communication of the decision or order of the appellate tribunal to him, may allow the same to be filed within a further period not exceeding 60 days. Hence, this Court has the jurisdiction to condone the delay but a limit has been fixed by the legislature, that is, 60 days. The Bench held that when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act.

The appeal was listed before the Bench on 29.1.2010 on which date this Court condoned the delay and admitted the appeal. In light of the said facts it was contended that when the delay in review was condoned by this Court, the parties should not be permitted to raise a preliminary objection. The Court, however, rejected the said contention and said that if the delay is statutorily not condonable, the delay cannot be condoned. There is no impediment to consider the preliminary objection at a later stage. [ONGC v. Gujarat Energy Transmission Corporation Ltd, 2017 SCC OnLine SC 223, decided on 01.03.2017]

Case BriefsHigh Courts

Madras High Court: This division bench of S. Manikumar and D. Krishnakumar, JJ held that there can be no order for condonation of delay beyond the extended period of limitation, stating that when the legislative intent is indicated by the provisions of special laws that exclude the provisions of the Limitation Act, then authorities under such statutes cannot exercise power to condone the delay. The Court dismissed the writ appeal filed by the Appellant under Section 85 of the Finance Act, 1994 against the refusal of condonation of a delay of 223 days in proceedings before the Commissioner of Service Tax (Appeals).

The Court noticed that Section 85 of the Finance Act) provides that appeal be filed 3 months from date of communication of order, while the Commissioner (Appeals) is empowered to condone delays of a further three months if satisfied of sufficient cause. The Court noted that Section 5 of the Limitation Act, 1963 which permits the Court to exercise its discretion in condonation of delay, as also sections 4 to 24, were to apply insofar as they were not barred by local or special law. The Court held section 85 of the Finance Act as analogous to limitation restrictions per Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Section 125 of the Electricity Act, 2003; Section 35-G of the Central Excise Act, 1944, constituting self-contained Acts and codes and that the High Court or the Supreme Court, as the case may be, cannot direct the appellate authority to condone the delay, beyond the extended period of limitation. Further, the Court, in consonance with the decision in Indian Coffee Worker’s Co-operative Society Ltd.  v. Commissioner of Commercial Taxes 2002 (I) CTC 406, stated that the power of the High Court under Article 226 of the Constitution did not extend to directing the Appellate Authority to consider appeal on merits, even if the High Court were to accept reasons given by the assessee for not filing appeal in the time prescribed under the Act as that would be an extension of limitation and the exercise of jurisdiction under Article 226 did not extend to re-writing the provisions of the Act. [R. Gowrishankar v. Commissioner of Service Tax (Appeal)- I., 2016 SCC OnLine Mad 6023, decided on 13-06-2016]

High Courts


Punjab and Haryana High Court: While examining the legal position regarding the condonation of delay u/s. 5 of Limitation Act, 1963, the Court observed that the test of ‘sufficient cause’ as in S. 5 is a pure individualistic test and not an objective test, therefore it depends upon the facts from case to case. It was further observed by the Court that The statute of limitation has left the concept of ‘sufficient cause’ undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no specific categories of sufficient cause. The categories of sufficient cause are never exhausted.Citing the Supreme Court decision in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation, (2010) 5 SCC 459, the Court observed that the u/s. 5 the courts are empowered to condone the delay where a party approaching the court belatedly shows sufficient cause for not availing the remedy within the prescribed period. The meaning to be assigned to the expression ‘sufficient cause’ occurring in S. 5 should be such so as to do substantial justice between the parties. The existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied in deciding such cases. M/s. Super Metal, Faridabad v. State of Haryana, VATAP No. 27 of 2013 (O&M), decided on May 12, 2014