The Union Of India vs M/S Trans India International Ltd
2022 Latest Caselaw 4967 Gua

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GAHC010177872021




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

                               Case No. : I.A.(Civil)/2189/2021

            THE UNION OF INDIA
            THROUGH THE CHIEF GENERAL MANAGER (CGM) AS WELL DIVISIONAL
            GENERAL MANAGER (DGM), TELEPHONE PROJECT, TASK FORCE, N.E.
            REGION, BSNL, PAN BAZAR, GUWAHATI-1, DIST- KAMRUP(M), ASSAM

            VERSUS

            M/S TRANS INDIA INTERNATIONAL LTD.
            REGD. OFFICE 13/1, SYED SALLY LANE, CALCUTTA 73, THROUGH ITS
            ZONAL OFFICE, OZA HYUNDAI BELTOLA CHARIALI, GUWAHATI-28, DIST-
            KAMRUP(M), ASSAM

Advocate for the Petitioner   : MR B N SARMA

Advocate for the Respondent : MR S KHOUND
             Linked Case :

            THE UNION OF INDIA

             VERSUS

            M/S TRANS INDIA INTERNATIONAL LTD. B
            ------------
            Advocate for : MR. B N SHARMA
            Advocate for : appearing for M/S TRANS INDIA INTERNATIONAL LTD. B

                                   BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                          ORDER

Date : 15-12-2022

Heard Mr. B.N. Sarma, learned counsel for the applicant/petitioner. Also heard Mr. Page No.# 2/8

D. Das, learned Senior counsel assisted by Mr. S. Khound, learned counsel for the respondent.

2. This is an application under Section 5 of the Limitation Act, 1963, read with Section 43 of the Arbitration and Conciliation Act, 1996 for condoning the delay of 485 days in preferring the connected appeal.

3. The brief facts of the case what emerges from the petition is that the respondent is a transportation company and the petitioner is a Government of India enterprise represented by its General Manager, Task Force as well as Divisional General Manager, Telephone Project, N.E. Region, BSNL.

4. The respondent having registered office in Calcutta was allotted contract work of transportation containing sophisticated telecommunication materials from Calcutta Port to Guwahati, Imphal, Dibrugarh and agreement was made between the parties and the respondent carried out transportation work. But the respondent was raising absurd bills and the petitioner was unwilling to pay the amount and the respondent registered its first case as T.S.(A) No. 190/1997 before the ld. Civil Judge but the same was referred to Arbitrator by order dated 14.08.2003 and sole Arbitrator was appointed and the case was registered vide Arb Case of 2004. After hearing both parties, arbitral award was given to respondent vide order dated 01.09.2006.

5. Against the said award, appellants filed an application before the ld. District Judge, Kamrup(M) for setting aside the award of arbitrator which was registered as Misc(Arb) case No. 610/2006 and the judgment was delivered on 07.09.2018 by the ld. District Judge, Kamrup(M) which was upheld and the award of sole arbitrator was confirmed. Against the said order, the petitioner decided to prefer an appeal before this Court but there was delay to be condoned for further proceedings.

6. The grounds of delay shown by the petitioner is that due to voluntary retirements of the BSNL employees for which the case could not be put forth before this Court. Another ground shown by the petitioner is that due to Corona disease, the Government had imposed lockdown and curfew and also the Court was not functioning properly.

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7. It is submitted by the learned counsel for the petitioner that the learned counsel for the BSNL Sri B.N. Sarma was suffering from Corona for which he was treated as an indoor patient in GMCH and also shifted in ICU as his condition became critical. Apart from that, about 70 employees of BSNL took voluntary retirement as such, many works were pending including this matter. As a result of which, the BSNL has failed to file the appeal in time before this Court.

8. In support of his submission the learned counsel has placed reliance on the following case laws:-

(i) (1998) Vol. 7 SCC 123 (N. Balakrishnan -vs- M. Krishnamurthy), (ii) 2006(supra) GLT 596 (Bhadreswar Lahan @ Bhaluka -vs- Lalit Lahan @ Kharikatia, (iii) (1981) Vol.2 SCC 788 (Rafiz and Ano. -vs- Munshilal and Ano.)

9. The learned counsel for the applicant/petitioner by referring the aforesaid case laws, pointed out in the citation what the Hon'ble Supreme Court has dealt with that rules of limitation are not meant to destroy the rights of parties. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.

It is also mentioned that 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.

10. The Hon'ble Supreme Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.

11. On the other hand, the learned Senior counsel for the respondent has submitted objection, wherein it is stated that the delay condonation petition filed by the petitioner is a mere after-thought as the same does not indicate any sufficient cause as to why the petitioner could not approach earlier before this Court by preferring the connected appeal.

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12. It is also stated in the petition that the award was passed by the arbitrator on 01.09.2006 and thereafter although the petitioner had preferred an application for setting aside of arbitral award but the same was dismissed on 07.09.2018. The explanation given by the petitioner regarding voluntary retirements of the employees of the BSNL is not at all acceptable. The learned counsel for the petitioner did not mention the names of the BSNL employees who had retired.

13. It is further stated that the explanation for Covid-19 as projected by the petitioner is also a lame explanation as the judgment was delivered on 07.09.2018 and at that time, there was no Covid pandemic. Even during the Covid-19 pandemic wave, the Court was working in restricted manner. Hence, the prayer of the petitioner regarding condonation of delay is liable to be rejected.

14. Learned Senior counsel for the respondent has argued that the applicant/petitioner was utterly negligent in their conduct as they were not vigilant as ignorance of law is not an excuse. The delay against preferring the appeal was intentional and deliberate. There was no sufficient cause given by the petitioner in lodging the prayer of the condonation of delay. The explanation, if any, is a casual explanation and the same is not a proper and cogent explanation. In that view of the matter, the delay condonation application may be dismissed.

15. In support of his submission, the learned Senior counsel for the respondent cited one case law:- (2012) Vol.3 SCC 563(Postmaster General and Ors. -vs- Living Media India Limited and Another.

16. In the said case, the Hon'ble Supreme Court has held that "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 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 Page No.# 5/8

or a wing of the Government is party before us. The law of limitation undoubtedly binds everybody, including the Government. In our view, it is the 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 bona fide 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

17. It cannot be disputed that the law of limitation has to be applied with all its vigor and rigor as prescribed by the statute. One cannot escape the consequences of Section

5. The Government cannot as a matter of rule take umbrage under the plea that it has to be treated on a different pedestal in the matter of the extension of time for filing the appeal application. No doubt, some latitude may be warranted to be given to the government or alike organization promoting social justice but it cannot escape the liability of satisfying the Court that the appeal was filed with due diligence. The Courts cannot come to the aid and rescue of such organization where the application for condination of delay does not spell out sufficient cause and the approach of the petitioner, in making such application, is casual and cryptic.

18. Testing the application of the applicant on the touchstone of the law governing the subject, it will be profitable to quote the following case laws-

In the case of P.K. Ramachandran -vs- State of Kerala , reported in AIR 1998 SC 2276, the Apex Court rules as under-

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor Page No.# 6/8

judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous first appeal shall stand dismissed as barred by time. No costs."

19. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows-

"...........This appeal emanates from the judgment of the Division Bench of the Gauhati High Court in Misc. Case No. 1569/2007 in W.A. No. 72020/2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under-

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgment should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

20. Resort can also be had to an elaborate and a lucid judgment of Hon'ble Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under-

".......21.2(ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.09(ix) The conduct, behavior and attitude of party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as Page No.# 7/8

the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. If the explanation offered is concocted or the ground urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.12(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude and an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

21. Applying the ratio of law laid down above to the instant case, there has been a reckless delay of 485days in filing the appeal and no satisfactory explanation has come forward on that count. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the petitioner but in the instant case the petitioner took its own time to file appeal with a prayer for condonation of delay.

22. According to the petitioner, there was delay in filing an appeal due to voluntary retirement of number of employees from BSNL as well as there was lockdown due to Page No.# 8/8

Covid-19 pandemic in the State. It appears from the record that the judgment was delivered on 07.09.2018. The Corona started in the year 2020 and the lockdown was imposed on March, 2020. There was no explanation as to why the petitioner has failed to file the appeal in the year 2019, prior to starting of Corona and imposed restriction for lockdown. Though the learned counsel for the petitioner has stated that a substantial number of BSNL employees have been retired from the service as such, there was delay in filing the appeal. But the BSNL has not provided the names of the persons who had retired from service during the said period.

23. Under such backdrop what is stated here is that the BSNL as a government establishment has been unable to prosecute its claim within time and the application appears to have been drafted recklessly without giving a proper account as to why such a delay was allowed to happen. The sequence of the events followed by the dates that prompted the BSNL to file the appeal after a long delay of 485 days had to be accounted for to satisfy the court that the delay in lodging of an appeal was neither willful nor deliberate.

24. Viewed in the context of what has been said above, I am of the opinion that the petitioner has failed to explain the delay of 485 days in filing the appeal. Consequently, the application for condonation of delay is rejected and the connected appeal stands dismissed.

25. With the above observation, the I/A stands disposed of accordingly.

JUDGE Comparing Assistant