Calcutta High Court (Appellete Side)

And Others vs Sri Dipankar Chakraborty on 19 February, 2021

68   19.02.2021
                                      F.A.T. 511 of 2019
     Ct. No. 02                              With
                                        CAN 1 of 2020
       ab                               CAN 2 of 2020

                        The Estate Officer, South Eastern Railway
                                       and others.

                                              Vs.

                                 Sri Dipankar Chakraborty.


                  Mr. Anath Bandhu Datta,
                  Mr. Mukesh Kumar Gupta.

                                                    ..for the appellants.


                  Mr. Subhasis Pyne,
                  Mr. Anjeet Das Mullick.

                                                    ..for the respondent.


                                         Re: CAN 1 of 2020


                        Though the appellants suggest that this appeal

                   has been preferred as a matter of principle, lack of

                   diligence and initiative on the part of the appellants

                   has led to an inordinate delay of 628 days to initiate

                   such fight for the principle in filing of this appeal.

                   The impugned judgment and decree giving rise to

                   such a fight for principle is a money decree, passed

                   in   favour   of   the   defendant,   for   Rs.3,11,021/-

                   together with interest at the rate of 8% per annum

                   from the date of filing of the suit till the realisation of
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the decretal amount.


      In this application for condonation of delay, the

appellants, however, have sought to explain and

justify such the delay in preferring the appeal

beyond the statutory period of limitation. It appears

that though the impugned judgment and decree was

passed on November 17, 2017, only in the first week

of January, 2018, for the first time, a letter was

written to an empanelled advocate of the appellants',

practising in this court, to provide for the certified

copy of the said judgment and decree of the trial

court along with his opinion as to further course of

action which may be adopted. The entire energy of

the    appellants,   thereafter,   from   the   month   of

January, 2018 to June 2019, was spent and

responsibility was discharged in repeating such

requests by writing about ten similar letters to the

said advocate. With a sense of relief, we find that the

appellants were able to file an application for the

certified copy of the said judgment and decree on

May 10, 2019, and the same was ultimately obtained

on September 25, 2019. It further appears that

another learned Advocate was approached in the

month of May, 2019, and the appeal was filed

ultimately on November 05, 2019, resulting in such

huge delay of 628 days. This application for
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condonation of delay does not provide for any

explanation as to the reason for not filing the appeal

in between the period of September 25, 2019 to

November 05, 2019.


    The abysmal conduct of the appellants in

causing such huge delay in preferring the appeal is

not unusual. It is often experienced that some

officials of the Government or its instrumentalities,

while dealing with a litigation, remain much more

concerned in keeping their service record straight

rather than taking the required effective steps in

conducting a litigation. The case in hand is no

exception.


    It was observed by the Supreme Court long ago

in the case reported at (1988) 2 SCC 142 (G.

Ramegowda          v.   Land   Acquisition     Officer) as

follows:-


                    "15.    In    litigations    to   which
                 Government is a party there is yet
                 another aspect which, perhaps, cannot
                 be ignored. If appeals brought by
                 Government are lost for such defaults,
                 no person is individually affected; but
                 what, in the ultimate analysis, suffers is
                 public interest. The decisions of
                 Government        are     collective   and
                 institutional decisions and do not share
                 the characteristics of decisions of private
                 individuals.

                        .......................

17. Therefore, in assessing what, in a particular case, constitutes 'sufficient

cause' for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making."

There has been a change of legal position in this

regard and the current legal position has been

elucidated by the Supreme Court in a later judgment

reported at (2012) 3 SCC 563 (Postmaster General

v. Living Media India Limited). The Supreme

Court in the said case, after considering G.

Ramegowda (Supra) and other judgments in the

same line, has held that law of limitation treats

everybody equally including Government and

defence by the Government of procedural delay

cannot be accepted.

The relevant paragraphs of the said judgment

are quoted below:-

"28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available.

The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide 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 red tape 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

The judgment rendered in Postmaster General

case has been followed in a recent judgment of

Supreme Court reported at (2020) 10 SCC 654

(State of Madhya Pradesh v. Bherulal).

In the said case, the Supreme Court further held

as follows:-

"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.

8. Looking to the period of delay and the casual manner in which the application has been worded, we consider it appropriate to impose costs on the petitioner State of Rs 25,000

(Rupees twenty-five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time."

We can only remind the appellants that the

Government is not a privileged litigant before a court

of law and equal amount of alertness, if not more, is

expected from the appellants as would be expected

from a private litigant. The appellants have a

structured legal department with a number of

permanent law officers in their pay role. It is a

minimum expectation that the officers of the legal

department of the appellants be conversant with the

procedure to obtain the certified copy of the decree

of the trial court to prefer an appeal avoiding delay.

There is no straitjacket formula to deal with an