Calcutta High Court (Appellete Side)
Tagari Singha & Ors vs Union Of India on 13 March, 2023
13.03.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl. No.
ss , ,
F.M.A.T. 798 of 2021
CAN 1 of 2022
,,
Tagari Singha & Ors.
versus
Union of India
Mr. Amit Ranjan Roy
Ms. Juin Das
... for the appellants-claimants.
Mr. Amitabha Nayek
Ms. Sayani Roy Chowdhury
... for the respondent-Union of India.
Re : CAN 1 of 2022
This is an application for condonation of delay in
preferring the appeal.
Mr Amit Ranjan Roy, learned Advocate for the
appellants-claimants submitted that the award was
passed by the learned Tribunal on 6th February, 2019
with a direction to satisfy the decreetal amount within 60
days from the date of judgment. However, the respondent-
Union of India did not satisfy the award within the
stipulated period and the award was only satisfied in the
month of November, 2021 after long expiry of the
statutory period of 60 days. Due to delay in satisfying the
award and financial stringency, the appeal could not be
preferred within the statutory period of limitation
resulting in delay of 312 days in preferring the appeal. He
further submitted that this appeal is precisely on the
point of award of interest. In light of the above
submissions, he prayed for condonation of such delay.
The aforesaid application is keenly contested by
respondent-Union of India by filing affidavit-in-opposition.
Ms Sayani Roy Chowdhury, learned Advocate led by
Mr Amitabha Nayek, learned Advocate for the respondent-
Union of India submitted that the appellants-claimants
submitted Bank mandate on 5th April, 2021. However,
there were certain defects which were required to be
removed by the appellants-claimants and they were orally
asked to submit revised mandate which ultimately was
submitted on 9th July, 2021 and thereafter on November
2021 the award has been satisfied and has been received
by the appellants-claimants without raising any objection.
Soon after receiving the awarded sum the appellants-
claimants have preferred the appeal, which is short of
bona fide. In view of her aforesaid submissions, she
prayed that the application for condonation of delay
should be dismissed in limine. In support of her
contentions, she relied on a decision of this Court passed
in Triparna Mondal @ Triparna Mondal (Ghosh) &
Ors. versus The National Insurance Co. Ltd. & Ors. in
F.M.A.T. 1303 of 2019 and another decision of Hon'ble
High Court of Judicature at Allahabad in the case of
Abdul Gaffar versus The Commissioner & Ors. in
WRIT-C No.-27447 of 2008. During the course of
hearing learned Advocate admitted the fact that no
interest has been paid in terms of order of the learned
Tribunal.
As per report of the Stamp Reporter dated 25th
April, 2022 there is delay of 312 days in preferring the
appeal.
It is precise contention of the appellants-claimants
that the delay in satisfying the award by the respondent-
Union of India has led to delay in filing the appeal. On the
flipside, the respondent-Union of India has raised the
issue that delay in filing the Bank mandate by the
appellants-claimants had led to delay in satisfying the
award and appellants cannot take benefit of their own
wrong. From the affidavit-in-opposition it appears that
even after filing of revised mandate in the month of July,
2021 the award has been satisfied after four months in
the month of November, 2021. During the course of
hearing learned Advocate for the respondent-Union of
India has admitted that although the principal amount of
the award was satisfied but the default interest granted
by the learned Tribunal has not been deposited. In the
appeal, the appellants-claimants have raised a solitary
issue of entitlement of interest on the awarded sum.
The judgements cited on behalf of the respondent-
Union of India is distinguishable in facts from the case at
hand.
The power under Section 5 of the Limitation Act is a
discretion one and has been deliberately conferred on the
Court in order that judicial power and discretion in that
behalf should be exercised to advance substantial justice.
When substantial justice and technical considerations are
pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to
have vested right in injustice being done because of a
non-deliberate delay. [See Collector, Land Acquisition
versus Katiji reported in (1987)2 SCC 107].
Considering the substantive isssue involved in the
appeal and also keeping in mind the beneficial piece of
legislation, I am inclined to condone the delay of 312 days
in preferring the appeal. Accordingly, the delay of 312
days in preferring the appeal is condoned.
The application being CAN 1 of 2022 stands
disposed of.
The appeal is formally admitted and registered.
Re : FMAT 798 of 2021
This appeal is preferred against the judgment and
award dated 6th February, 2019 passed by the learned
Railway Claims Tribunal, Kolkata Bench, in Claim
Application No.OA(IIu)/KOL/2010/0342 under Section
16 of the Railway Claims Tribunal Act, 1987 read with
Section 123(c)(2) and 124-A of Railways Act, 1989.
Let the lower court records be called for.
Department is directed to take effective steps for
bringing the lower court records from the learned
Tribunal within two weeks from the date.
Upon receipt of the lower court records, the Office
shall examine the same and if found to be complete and in
order, shall serve notice of arrival of the lower court
records upon the learned advocate for appellants-
claimants as well as learned Advocate for the respondent-
Union of India within a period of two weeks of such
arrival.
Learned Advocate for the appellants-claimants
upon receipt of notice of arrival of lower court records,
shall prepare and file requisite number of informal paper
books incorporating all relevant papers and documents
including the pleadings and evidence, both oral and
documentary, printed or typewritten or cyclostyled, as the
case may be, out of court, within a period of four weeks
from the date of service of notice of arrival of lower court
record on the learned Advocate for the appellants.
Since the respondent-Union of India has already
entered appearance, hence service of notice of appeal
upon the said respondent is dispensed with.
Matter to go out of list.
Liberty to mention.
< (Bivas Pattanayak, J.)
