South India Shipping & Export Co. ... vs Tribal Cooperative Marketing ...
2010 Latest Caselaw 5919 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI



                         Date of Hearing : 30TH November, 2010

                         Date of Decision : 24th December, 2010



+       CM No.15337/2010 (delay) & FAO(OS) No.537/2010

        SOUTH INDIA SHIPPING & EXPORT CO. (SISECO)
                                           ...APPELLANT
                      Through: Mr.Sumit R.Sharma, Advocate,
                      for Mr.Ramakant Gaur counsel for the
                      Appellant

                               Versus


        TRIBAL COOPERATIVE MARKETING DEVELOPMENT
        FEDERATION OF INDIA LTD.,(TRIFED) ...RESPONDENT
                     Through: Mr.Alakh Kumar, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE VIKRAMAJIT SEN
        HON'BLE MR. JUSTICE G.P.MITTAL

        1. Whether reporters of local papers may be
           allowed to see the Order?

        2. To be referred to the Reporter or not?

        3. Whether the Order should be reported
           in the Digest?

                         JUDGMENT

G.P. MITTAL, J.

1. The Appellant impugns the Order dated 02.04.2009

passed by the Learned Single Judge, whereby the

Objections under Section 34 of the Arbitration &

Conciliation Act, 1996 ('A&C Act') preferred by the

Appellant were dismissed on the ground that the

Appellant has not been able to disclose any ground to

bring his case under Section 34 of the A&C Act.

2. Along with the Appeal, an Application under Section 5 of

the Limitation Act, 1963 has also been filed for

condonation of delay of 433 days in filing the Appeal.

According to the Appellant, instead of filing an Appeal, as

provided under Section 37 of the A&C Act, the Appellant

mistakenly preferred SLP bearing No.CC.6080/2010

against the impugned order. However, vide Order dated

14.05.2010, the Hon'ble Supreme Court allowed the

Appellant to withdraw the Appeal with liberty to seek

appropriate remedy under law against the Impugned

Order dated 02.04.2009.

3. It is the case of the Appellant that the Appeal was filed on

9th July, 2010 as soon as the Appellant received the Order

from the Hon'ble Supreme Court. According to the

Appellant, it has got a good case on merits and, thus, the

delay of 433 days in filing the Appeal may be condoned.

4. The courts normally do not throw away the meritorious lis

on hypertechnical grounds. The primary function of a

court is to adjudicate the dispute between the parties and

to advance substantial justice. The time-limit fixed for

approaching the court in different situations is not

because on the expiry of such time a bad cause would

transform into a good cause. 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. The

law of limitation is thus founded on public policy. The

idea is that every legal remedy must be kept alive for a

legislatively fixed period of time. Condonation of delay is

a matter of discretion of the court. Section 5 of the

Limitation Act does not say that such discretion can be

exercised only if the delay is within a certain limit.

5. Principles enunciated for condonation of delay are well

settled. Expression 'sufficient cause' should be given

liberal interpretation so as to advance substantial justice

between the parties. (Balwant Singh Vs. Jagdish Singh

(2010) 8 SCC 685; State of Karnataka Vs. Y. Moideen

Kunhi (Dead) By LRs and Others (2009) 13 SCC 192;

Ram Nath Sao Vs. Gobardhan Sao (2002) 3 SCC 195; N.

Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123;

G.Ramegowda, Major and Others Vs. Special Land

Acquisition Officer, Bangalore and Basavalingappa Vs.

Special Land Acquisition Officer, Bangalore, (1988) 2

SCC 142). It is not the length of delay which is material

for condonation of delay in filing an appeal but the

acceptability of the explanation. There may be cases

where a few months' delay may not be condoned as an

applicant has no reasonable explanation to offer for the

same, yet there are cases where delay of several years has

been condoned. (State of Nagaland Vs. Lipok Ao and

Others (2005) 3 SCC 752; Ramnath Sao Vs. Gobardhan

Sao (2002) 3 SCC 195; M.K.Prasad Vs. P. Arumugam

2001 (6) SCC 176; State of Bihar Vs. Kameshwar Prasad

Singh and Another 2000 (9) SCC 94; N.Balakrishnan Vs.

M.Krishnamurthy (1998) 7 SCC 123). The law that each

day's delay must be explained has mellowed down yet it

has to be shown by the applicant that there was neither

any gross negligence nor any inaction, nor want of

bonafides.

6. Turning to the facts of the instant case, it may be

mentioned that the Impugned Order was passed on 2nd

April, 2009. The Appellant says that instead of filing the

Appeal in this Court, it has filed the SLP. There may be a

bonafide mistake in choosing the forum and in a given

case, it may amount to sufficient cause. It may, however,

be seen that even if the Appellant is given latitude of 90

days in preferring the SLP, the same could have been filed

in the Hon'ble Supreme Court sometime in August, 2009.

Though the Appellant has not given the date of filing the

SLP, yet a reference to para 2 of the Application would

reveal that the SLP bearing No.CC.6080/2010 is claimed

to have been filed by the Appellant. This means that the

SLP was filed only in the year 2010. The SLP came to be

withdrawn vide Order dated 14.05.2010 of the Hon'ble

Supreme Court. The Appellant has not placed on record

any copy of the SLP or even the Order of the Hon'ble

Supreme Court, whereby the Appeal was dismissed as

withdrawn. It seems that the Appellant had been

prosecuting its lis at its pleasure, whims and fancies.

Furthermore, as per the case of the Appellant itself, the

Appeal was dismissed as withdrawn on 14th May, 2010.

The instant Appeal, according to the Appellant, was filed

in this Court on 9th July, 2010(though the same does not

appear to be correct as per record) and the Appeal seems

to be filed only on 6th August, 2010 and refilled on 25th

August, 2010. Assuming that the Appeal was filed in this

Court on 9th July, 2010, as claimed by the Appellant, the

explanation given by it that the Appeal was filed as soon

as copy of the Order of the Hon'ble Supreme Court was

received, smacks of complete indifference on the part of

the Appellant. As stated above, copy of the Order passed

by the Hon'ble Supreme Court has not been placed on

record. It is not disclosed by the Appellant as to whether

it ever applied for any certified copy and when the same

was supplied to it.

7. When a litigant seeks condonation of delay, he cannot be

permitted to make casual statements. He has to explain

the entire delay at least from the date when the limitation

had expired. In the instant case, the Appellant has given a

general and vague explanation. The conduct of the

Appellant shows gross negligence, inaction and want of

bonafides . There is no sufficient cause for condonation

of delay. The Application for condonation of the delay and

the Appeal are, accordingly, dismissed.

All pending Applications stand disposed of.

(G.P. MITTAL) JUDGE

(VIKRAMAJIT SEN) JUDGE December 24, 2010 RS/