North Delhi Power Ltd. vs Aar Ess Industries
2010 Latest Caselaw 5092 Del

20.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA 488/2008

%                             Judgment Delivered on: 09.11.2010

NORTH DELHI POWER LTD.                                   ..... Appellant
              Through :       Mr. K. Datta, Adv.

                   versus

AAR ESS INDUSTRIES                                       ..... Respondent
               Through :      Mr. Sunil Malhotra, Adv.

      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI

         1. Whether the Reporters of local papers may be allowed to
            see the judgment?                             YES
         2. To be referred to Reporter or not?            YES
         3. Whether the judgment should be reported in the Digest? YES

G.S.SISTANI, J. (ORAL)

CM NO.17961/2008.

1. This is an application filed by the appellant under Section 5 of

the Limitation Act seeking condonation of 85 days delay in filing

the present appeal against the judgment dated 09.05.2008 of

learned Additional District Judge.

2. The grounds for delay have been set out in paragraphs 3 to 6 of

the present application, which are reproduced below:

"3. That the present appeal arises out of facts and circumstances pertaining to the period of the erstwhile DVB, the predecessor-in-interest of the Appellant herein, and the Respondent had made averments regarding certain letters written to the DVB in or about March 1997. The respondent therefore diligently attempted to locate any such letters that may have a bearing on the outcome of the present Appeal and as such considerable time

and effort was spent by the Appellant during the months of August and September 2008.

4. That the Respondent had filed another Civil Suit, Suit No.66 of 1998 on absolutely the same facts as the Suit No.54 of 2004 which led to the present Appeal. The Appellant therefore, in co-ordination with its Counsels undertook a careful scrutiny of the pleadings in both the cases and also the Order Sheets/Proceedings of both the Suits to ensure that the Respondent was in effect agitating the same cause of action, if any, through two different proceedings. A substantial time was spent in the said scrutiny during the month of September 2008 and the process of drafting of the present Appeal was commenced immediately thereafter.

5. That the legal opinion of the counsels was sought subsequent to locating the documents that could be found with due diligence and the verification of the records of the two Suits. The same was followed by drafting of an appropriate Appeal.

6. In view of the festival season and the vacations of the Hon‟ble Delhi High Court, the Counsel engaged in the matter was out of station for about two weeks period in the middle of the month of October 2008."

7. Learned counsel for the appellant has strongly urged before this

Court that after passing of the impugned judgment dated

9.5.2008 by the trial court in Suit No.54/2004, the respondent

had been locating certain letters relied upon by the respondent

having written the same to the DVB in the month of March,

1997. Counsel further submits that considerable time was spent

and effort was made during the months of August, 2008 till

September, 2008, for locating the said letters. Counsel also

submits that the respondent had filed another Suit being Suit

no.66/1998 on identical facts as in Suit No.54/2004 (subject

matter of the present appeal). Counsel also submits that

appellant took time in coordinating with its counsel and

undertook a careful scrutiny of the pleadings in both the cases

as the respondent was in effect agitating the same cause of

action in two different proceedings. Counsel next submits that

considerable time was also spent in scrutinizing the pleadings

and thereafter in drafting the appeal, which was finally filed on

18.12.2008.

8. Learned counsel for the appellant has relied upon Collector,

Land Acquisition, Anantnag and Another v. Mst. Katiji

and Others, reported at AIR 1987 Supreme Court 1353, and

more particularly para 3 of the judgment, to canvass his

arguments that ordinarily a litigant does not stand to benefit by

lodging an appeal late and also refusing to condone delay can

result in a meritorious matter being thrown out at the very

threshold, defeating the cause of justice.

9. Learned counsel for the appellant submits that a liberal view

should be taken in this matter and delay should be condoned.

10. Learned counsel for the respondent has vehemently opposed

the present application on the ground that the application does

not disclose sufficient grounds for condoning the delay. Counsel

for the respondent submits that both the suits arise from a

different and distinct cause of action. Counsel further submits

that the ground taken with regard to pendency of two suits is

baseless as both the suits were pending in the trial court and

were being pursued by the appellant herein and the appellant

could not have taken three months time in ascertaining the

facts in both the matters. Counsel also submits that the

implication of pendency of an earlier suit should have been

considered by the appellant at the time of filing of the written

statement before the trial court and pendency of an earlier suit

would have no effect to the filing of the present appeal.

11. I have heard counsel for the parties, who have taken me

through the application and reply thereto. The basic facts are

not in dispute that the judgment and decree was passed on

9.5.2008. Present appeal has been filed on 8.12.2008 after a

delay of 85 days.

12. In the case of P.K. Ramachandran Vs. State of Kerala &

Anr. (1997) 7 SCC 556, the Supreme Court has held that an

essential pre-requisite of exercising discretion to condone the

delay is that the Court must record its satisfaction that the

explanation for delay was either reasonable or satisfactory.

13. In this case, it may be noticed that the judgment was rendered

by the trial court on 9.5.2008. The appellant applied for the

certified copy of the judgment on 14.5.2008, which was

received on 27.6.2008. There is no force in the submission of

learned counsel for the appellant that appeal could not be filed

in time on the ground that the appellant was searching for

letters pertaining to the year 1997, which were exchanged

between the erstwhile DVB and the respondent, and also the

fact that it took 90 days plus two and a half months to

scrutinize the pleadings of two suits, which were pending in the

trial court and were being pursued by the respondents.

14. While dealing with an application for condonation of delay

under Section 5 of the Limitation Act, the Court must bear in

mind two important considerations. Firstly, the expiration of

limitation for filing an appeal gives rise to a legal right to a

decree-holder to treat the decree as binding between the

parties and this right should not be lightly disturbed. Second, if

sufficient cause is shown for condonation of delay, the delay

should be condoned. It has been repeatedly held by the

Supreme Court of India that the words "sufficient cause" should

receive a liberal construction so as to advance substantial

justice. In the same breath, it has been held that the discretion

should be exercised, when there is no negligence or inaction

nor want of bona fides imputable to the appellant the Court

must be satisfied that there was due diligence on the part of the

appellant.

15. In a recent decision rendered by the Supreme Court of India in

Balwant Singh vs. Jagdish Singh & Ors., reported at 2010

(6) SCALE 749, while deciding an application under Order XXII

Rule 9 CPC and Section 5 of the Limitation Act, it was held as

under:

13. ... We may state that even if the term „sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of „reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given

case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR1962 SC 361] this Court took the view:

"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time

should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269.

It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..."

16. The facts of this case are to be considered on the touchstone of

the broad principles which have been laid down by the Supreme

Court of India while considering the present application for

condonation of delay. The conduct of the appellant in the

present case shows total callousness and negligence.

17. In the case of Ramlal & Others v. Rewa Coal Fields Ltd.,

reported at AIR 1962 SC 36 it has been held that the court must

not lose track of the fact that while passing a decree a

substantial right accrues in favour of the respondent and this

right should not be disturbed lightly.

18. Paragraphs 3, 4 and 5 of this application do not disclose

sufficient grounds for condoning the delay. In case the objection

was to be raised by the respondents with regarding to

pendency of an earlier suit this objection should have been

taken by the appellant at the very first instance at the time of

filing of the written statement. Even otherwise, it is not disputed

that no issue has been framed as to whether the second suit is

barred by res judicata. Neither the appellant considered it

appropriate to file an application under Order VII Rule 11 CPC

for dismissal of the suit of the respondent on this ground. At this

belated stage, to raise these objections cannot be permitted in

the absence of sufficient grounds.

19. The law laid down in the case of Collector, Land Acquisition,

Anantnag and Another (supra) is not applicable to the facts

of the present case, in view of the inaction and callous attitude

of the appellant.

20. It has been repeatedly held that the rules of procedure are

hand-mades of justice, a party should not be refused relief on

account of some mistake, negligence or inadvertence. No

doubt, rules of procedure are designed to facilitate justice and

further its ends, however, even if a liberal approach is taken in

the matter, I find that the application for condonation of delay is

not bona fide. The present case is of complete inaction and

negligence for which no indulgence can be given to the

appellant. The grounds set out in the present application were

not material for filing an appeal.

21. In view of this, present application cannot be entertained, the

same is accordingly dismissed.

RFA 488/2008

22. Appeal stands dismissed in view of the orders passed in the

application for condonation of delay.

G.S. SISTANI, J.

November 09, 2010 'msr‟