The Oriental Insurance Company ... vs Md Shahid Jaman Choudhury And Anr
2021 Latest Caselaw 3165 Gua

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GAHC010279672018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : I.A.(Civil)/4281/2018

            THE ORIENTAL INSURANCE COMPANY LTD
            A CENTRAL GOVERNMENT UNDERTAKING HAVING ITS GAUHATI
            REGIONAL OFFICE AT GUWAHATI. ULUBARI, KAMRUP M, REPRESENTED
            BY THE DEPUTY GENERAL MANAGER. GAUHATI REGIONAL OFFICE
            ,ULUBARI, GUWAHATI 781007 KAMRUP M ASSAM



            VERSUS

            MD SHAHID JAMAN CHOUDHURY AND ANR
            S/O LATE LALMAMUD ALI,
            VILLAGE NO. 3 LARKUCHI, PS MUKALMUA, DIST NALBARI, ASSAM,
            781138

            2:MD. JAKIR HUSSAIN
             S/O LATE RAHMAT ALI
            VILLAGE NO. 3 LARKUCHI
             PS MUKALMUA
             DIST NALBARI
            ASSAM
             781138
            OWNER/DRIVE

Advocate for the Petitioner   : MS. R D MOZUMDAR

Advocate for the Respondent : MR. J KALITA




                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                          ORDER

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Date : 29-11-2021

Heard Ms. R.D. Majumdar, learned counsel for the applicant and Mr. J. Kalita, learned counsel for the opposite party.

This is an application under Section 5 of the Limitation Act praying for condonation of 618 days delay in preferring the appeal.

The primary ground taken in this petition is that a review petition was filed after the Tribunal had passed the judgment and since the review petition was pending for long time, the delay has occurred.

Ms. Majumdar has relied upon two decisions of the Supreme Court, namely, State of Nagaland Vs. Lipokao & Ors . reported in (2005) 3 SCC 752 and United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. reported in (2000) 3 SCC 581.

In paragraphs 14 and 15 of State of Nagaland (supra), the Supreme Court has held as under:

"14. In G. Ramegowda, Major v. Spl. Land Acquisition Officer (1988 (2) SCC 142), it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause"

must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. 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. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have Page No.# 3/6

suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.

15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he Page No.# 4/6

would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."

In paragraph 17 of United India Insurance Co. Ltd. (supra), the Supreme Court observed as under:

"17. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."

Ms. Majumdar has submitted that the award was procured by practicing fraud.

Par contra, Mr. Kalita has submitted that the delay has not been properly explained, as because the learned counsel, who filed the review petition was not authorized by the Insurance Company to file the said petition. In order to buttress his submission, Mr, Kalita has placed reliance on the decision of the Supreme Court rendered in State of Madhya Pradesh & Ors. Bherulal reported in (2020) 10 SCC 654. Paragraphs 3 and 5 of the said judgment are quoted as under:

"3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

"12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of Page No.# 5/6

filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

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 bonafide, 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 bonafide 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 government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!"

"5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."

I have given my anxious consideration to the submissions made by Page No.# 6/6

the learned counsel for both the sides.

When a newly discovered fact, amounting to high degree of fraud is there, such fact cannot be foreclosed by the bar laid down by law of limitation. The money that will be paid by the Insurance Company actually belongs to the public. Therefore public money is involved in this case. Furthermore, it is also a settled position of law that while considering a prayer under Section 5 of the Limitation Act, court should not require to take very technical approach. It is the Insurance Company, in this case, that runs of risk of losing money. Moreover, since commission of fraud has been pleaded, this court is of the opinion that the Insurance Company should be given a chance of being heard.

In view of the above, the delay stands condoned.

I.A. is disposed of.

The Registry is directed to register the connected appeal and list for admission.

JUDGE

Comparing Assistant