U.P. Avas Evam Vikas ... vs Manju Singh
2022 Latest Caselaw 2140 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- RERA APPEAL No. - 13 of 2022
 

 
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Housing Commissioner
 
Respondent :- Manju Singh
 
Counsel for Appellant :- Umesh Chandra Pandey
 

 
Hon'ble Jaspreet Singh,J.

Heard learned counsel for the appellant.

The instant appeal has been preferred under Section 58 of the Real Estate (Regulation and Development) Act, 2016 against the judgment and order dated 01.11.2021 passed by the appellate Tribunal in Appeal No.374/2019 (U.P. Avas Evam Vikas Parishad v. Smt. Manju Singh) which arose from the order dated 30.07.2018 passed by the Regulatory Authority in complaint preferred by the private-respondent.

The submission of the learned counsel for the appellant is that the Tribunal has erred in taking a pedantic view of the provisions regarding condonation of delay. It is further urged that contrary finding has been recorded by the Tribunal which ought to have been construed in favour of the appellant.

It is the specific case of the appellant that the Regulatory Authority had passed an order on 30.07.2018. It is urged that in terms of Section 44 sub-section (5) of RERA Act, 2016, the appeal is to be preferred within a period of sixty days. It is also stated that in terms of sub-section (2) of Section 44 of the RERA Act, 2016, the period of sixty days is to commence from the date when the order passed by the Authority or Adjudicating Officer is received by the aggrieved person.

It is pointed out that the Tribunal while passing the impugned order in Para-21 has specifically stated that the certified copy of the order dated 30.07.2018 was received by the present appellant on 12.07.2019. Thus, once the order was received on 12.07.2019 and the appeal was preferred on 30.07.2019, hence, it was clearly within sixty days and this aspect of the matter has clearly escaped the attention of the Tribunal while passing the order rejecting the application seeking condonation of delay. consequently the appeal.

It is light thereof that the substantial question of law as proposed is that the word sufficient cause as postulated in Section 5 of the Limitation Act has been incorrectly considered. Moreover, the provisions of Section 44(2) and (5) of the Act of 2016 have also not been properly applied and this gives rise to the substantial question of law, proposed in the memo of appeal.

Having considered the aforesaid submissions and from the perusal of the material on record, at the outset, it may be noted that the Tribunal while passing the order dated 01.11.2021 has taken note of the manner in which the orders first were being provided to the parties free of costs on making applications. Thereafter, it has also noticed that the orders are being uploaded on the email I.D., given by the parties concerned. After noticing the aforesaid facts the Tribunal has also taken note of the application filed by the appellant seeking condonation of delay and its accompanying affidavit, which has been brought on record as Annexure No.2 with the paper-book of the instant appeal and Paragraphs 3 to 10 of the said affidavit is reproduced hereinafter for ready reference:-

"3. That it is pertinent to clarify that after hearing the parties on 26/06/2018, the learned Authority had reserved the judgment in the case.

4. That order dated was pronounced and uploaded on the website of the Authority on 30/07/2018.

5. That thereafter advocate was appointed for filing the present appeal.

6. That officer was sent to advocate at Lucknow, with record from Ghaziabad office, but documents were lost in train, as such First Information Report was lodged.

7. That thereafter much time was wasted in arranging the record, to file the appeal.

8. That the counsel informed the deponent to get the demand draft of Rs.1000/- prepared in the name of Appellate Authority, as such the deponent got the draft prepared.

9. That after getting the Draft prepared the deponent came to Lucknow for signature and filing of the appeal.

10. That delay which has occurred is not deliberate or willful nor intentional and the same has caused due to situation beyond the control of the deponent."

Having noticed the aforesaid, it would indicate that the deponent of the affidavit, who is Executive Engineer has stated in Para-4 that the order was pronounced and uploaded on the website of the Authority on 30.07.2018. There is no averment at all as to when the order came to be knowledge of the appellant. There is no averment at all as to when the copy was applied for or received. There is also no averments whatsoever to indicate that what transpired between 30.07.2018 till 30.07.2019 when the appeal came to filed.

It is in this backdrop if Paragraphs 21, 24 and 25 of the impugned order is seen, it would indicate that the reference to the date which is mentioned in Para-21 of the impugned order is nothing but the date which was affixed on the certified copy which was filed along with the appeal. Hence, to urge that there is contradictory finding given by the Tribunal is not correct.

As already noticed above, there is no averments to indicate when the copy was applied and when it was received apart from this fact, there is no denial of the fact that the order passed by the Regulatory Authority was uploaded as well as was sent to the appellant on their email I.D., consequently, it is a clear case where no ground at all has been indicated muchless sufficient cause for condonation of delay. Even though the provisions of Section 5 of the Limitation Act requires liberal construction but at the same time, it must be remembered that delay is not condoned on mere asking or as a matter of right. The person seeking must disclose a cause which if construed liberally can benefit him but where there is no cause indicated there can be no leniency to condone the delay as rights come to be vested in the other party which also needs to be balanced and cannot be ignored.

The appellate authority has placed reliance on the decision of the Apex Court in the case of Postmaster General and others v. Living Media India Limited and another, (2012) 3 SCC 563.

Even otherwise the aforesaid proposition has been reiterated by the Apex Court in the case State of Madhya Pradesh and others v. Bherulal, (2020) 10 SCC 654, wherein Paragraph 5, 6 and 7 reads as under:-

"5. A preposterous proposition is 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.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as "certificate cases". The object 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. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. 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, straightaway the counsel 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.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

Again in a recent pronouncement of the Apex Court in the case of V. Nagarajan v. SKS Ispat and Power Ltd. and others. (2022) 2 SCC 244, the Apex Court dealing with the issue regarding condonation of delay in context with Section 12 of the Limitation Act which relates to exclusion by time taken by a party for obtaining a certified copy of its order to seek an appeal in Paragraphs 30 and 31 has held as under:-

"30. Section 12 of the Limitation Act provides guidance on reckoning the period of limitation and excludes the time taken by a party for obtaining a certified copy of the order it seeks to appeal. However, the Explanation clarifies that the time taken by the court in preparing the order before an application for a copy is filed by the aggrieved party, is not excluded from the computation of limitation:

"12. Exclusion of time in legal proceedings.?(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment shall also be excluded.

(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

Explanation.?In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."

(emphasis supplied)

31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the Explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or order cannot be excluded before the application to obtain a copy is made. It cannot be said that the right to receive a free copy under Section 420(3) of the Companies Act obviated the obligation on the appellant to seek a certified copy through an application. The appellant has urged that Rule 14 ["14. Power to exempt.?The Appellate Tribunal may on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice."] of the Nclat Rules empowers Nclatto exempt parties from compliance with the requirement of any of the rules in the interests of substantial justice, which has been typically exercised in favour of allowing a downloaded copy in lieu of a certified copy. While it may well be true that waivers on filing an appeal with a certified copy are often granted for the purposes of judicial determination, they do not confer an automatic right on an applicant to dispense with compliance and render Rule 22(2) of the NclatRules nugatory. The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, Nclat had dismissed an appeal [Prowess International (P) Ltd. v. Action Ispat & Power (P) Ltd., 2018 SCC OnLine NCLAT 644] as time-barred under Section 61(2) IBC since the appellant therein was present in court, and yet chose to file for a certified copy after five months of the pronouncement of the order."

In view thereof, this Court finds that there is no error, which has been committed by the appellate authority. Accordingly, this Court is of the opinion that no substantial question of law arises in the instant appeal which is dismissed at the admission stage itself. Costs are made easy.

Order Date :- 6.5.2022

Rakesh/-