Enforcement Directorate vs Lord Shiva Enterprises & Others
2008 Latest Caselaw 1339 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Crl.M. No. 6974/2006 in CRL.A.No.547/2008

%                     Date of Decision: 13.08.2008

Enforcement Directorate                         .... Appellant
                    Through Ms.Rajdipa Behura, Advocate

                                Versus

Lord Shiva Enterprises & Others                  .... Respondents
                     Through Mr.Tarun Diwan, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.   Whether reporters of Local papers may be                 YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                   NO
3.   Whether the judgment should be reported in               NO
     the Digest?


ANIL KUMAR, J.

*

Crl.M.A. No.6974/2006

This is an application by the appellant under Section 5 of the

Limitation Act seeking condonation of delay in filing the present appeal

against the order dated 31st March, 2006 of the Appellate Tribunal for

Foreign Exchange.

The appellant has contended that on 25th May, 2006, the counsel

was instructed to file an appeal and the appeal had been filed on 5th

July, 2006. The certified copy of the impugned order dated 31st

January, 2006 was received in the Enforcement Directorate on 22nd

February, 2006. The impugned order was examined till 7th March,

2006 and was put up to the Review Committee for consideration and

after review on 21st April, 2006 the file was submitted to D.E. for final

approval to file the appeal in the High Court. It is stated that from 8th

May, 2006 to 16th May, 2006 the competent authority after discussion

ordered the appeal to be filed before the Court and from 18th May, 2006

to 24th May, 2006 the Zone was intimated to file the appeal. Since the

file was received on 25th May, 2006, the appeal was prepared and could

not be filed before the vacation in 2006 which started on 3rd June, 2006

and was filed on 5th July, 2006 and there is a delay of 46 days.

The appellant had contended that in the interest of conservation

of foreign exchange resources of the country and for their appropriate

utilization, and in the interest of economic development of the nation,

the delay of 46 days in filing the appeal be condoned as there is

sufficient cause for condonation of delay as contemplated under Section

5 of the Limitation Act.

Learned counsel for the appellant has also relied on (2000) 9

Supreme Court Cases 94, State of Bihar and others v. Kameshwar

Prasad Singh and Another; (1996) 10 Supreme Court Cases 634,

Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma; (1996) 3

Supreme Court Cases 132, State of Haryana v. Chandra Mani and

Others; (1998) 7 Supreme Court Cases 123, N. Balakrishnan v. M.

Krishnamurthy and AIR 1987 Supreme Court 1353, Collector, Land

Acquisition, Anantnag and another v. Mst. Katiji and others to contend

that the delay is liable to be condoned.

The application is opposed by the respondents and reply has been

filed contending inter alia that the application does not disclose any

bonafide reason for condonation of delay in filing the appeal. Reliance

has also been placed on 2007 IV AD (Delhi) 458, Union of India v.

Wishwa Mittar Bajaj & Sons & Others. It has also been contended that

the vacation started from 3rd June, 2006 and ended on 3rd July, 2006

and the appeal has been filed on 5th July, 2006 though it could have

been filed prior to that and especially since the Registry opened on 29th

June, 2006. The other averments made in the application were also

denied.

I have heard the learned counsel for the parties in detail and have

perused the precedents relied on by them. The appellant has given the

details as to when the certified copy was received, how it was

considered and how the file was sent to different authorities for taking

decision and how the file was ultimately given to the counsel on 25th

May, 2006 who ultimately filed the appeal on 5th July, 2007. The

application of the appellant is supported by the affidavit of Shri K.J.

Rao, Assistant Director of the Enforcement Directorate. Though the

respondent has denied the averments made by the appellant, however,

considering the facts and circumstances, I have no reason to disbelieve

the pleas of the petitioner regarding various stages through which the

file moved and the decision was taken to file an appeal.

The apex Court has also held that court should adopt a liberal

approach while considering the condonation of delay in filing the

appeals. In Collector, Land Acquisition, Anantnag and another (supra),

the Supreme Court had held that experience shows that on account of

impersonal machinery and the inherited bureaucratic methodology,

cause of the community which is represented by the State does not

deserve a non grata status and consequently while taking into

consideration the interpretation of sufficient cause, all the relevant

factors should be considered. The Apex Court laid down that a liberal

approach should be adopted while construing the sufficient cause for

condonation of delay, as ordinarily a litigant does not stand to benefit

from lodging an appeal late and refusing to condone the delay can

result in a meritorious matter being thrown out at the very threshold

and cause of justice being defeated. It was also held that there is no

presumption that delay is occasioned deliberately, or on account of

culpable negligence or on account of malafides. It was held that the

judiciary is respected not on account of its power to legalize injustice on

technical grounds but because it is capable of removing injustice and is

expected to do so.

Similarly in N. Balakrishnan (supra), the apex Court had held

that the object of fixing the time limit is not meant to destroy the rights

and it is founded on public policy of fixing a life span for the legal

remedy in the general welfare. The apex Court in para 11 at page 127

had held as under:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would support up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time".

In State of Haryana (supra), the apex Court relying on Ramlal v.

Rewa Coalfields Ltd., (1962) 2 SCR 762, had held that in inferring the

sufficient cause to condone the delay, it is not necessary that a litigant

has to explain delay of the period between the date of the judgment till

the date of the filing of the appeal. It was observed that it is sufficient if

the litigant would explain the delay caused in the period between the

last of the dates of limitation and the date on which the application is

actually filed.

The apex Court was of the view that no hard and fast rule can be

made to infer or ascertain "sufficient cause" because the expression

"sufficient cause" should receive a liberal construction. It was held that

what is to be seen is that the litigant has acted with reasonable

diligence in prosecuting the appeal. Dealing with the delays on the part

of the government, in Special Tehsildar, Land Acquisition, Kerala

(supra), it was held that the object of the court should be pragmatic and

not pedantic and the government should not be insisted to explain every

day delay. In the present case for condonation of delay, the details have

been given as to when the certified copies was received and who

considered the file and at what stages the decision was ultimately taken

to file the appeal and the time taken by the counsel for filing of the

appeal.Considering the entirety of facts and circumstances, it is difficult

to infer that there is no sufficient cause as contemplated under the law

in the facts and circumstances. The apex Court had also held in State

of Bihar and Others (supra) that the power to condone the delay in

approaching the court has been conferred to enable them to do

substantial justice and decide the matters on merit.

The judgment relied on by the respondent was under Section 34

of Arbitration & Conciliation Act, 1996. In the said judgment though a

decision was taken to file the appeal in July and there was a stipulation

that urgent steps be taken, still for almost three months nothing was

done and considering the various other facts of the case, the delay was

not condoned in filing the objections to the award under Section34 of

the Arbitration & Conciliation Act, 1996. Apparently, the judgment

relied on by the respondent is distinguishable.

There are no other factors which will disentitle the appellant for

condonation of delay in the facts and circumstances as there is

sufficient cause as contemplated under law.

Therefore, for the foregoing reasons, there is sufficient cause for

condonation of delay in filing the appeal. The application of the

appellant is, therefore, allowed and delay of 46 days in filing the appeal

is condoned.

Crl.A.No.547/2006

Adjourned at the request of counsel for the respondent.

List on October 24, 2008.

August 13th , 2008                                 ANIL KUMAR, J.
'Dev'