Madras High Court
Chengalvarayan Co-Operative ... vs R.S.Natarajan .. 1St on 24 September, 2021
C.M.P. Nos.15356 of 2021 etc. batch and
W.A.SR. Nos.105735 of 2014 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.M.P. Nos.15356, 15358, 15360, 15363, 15364 & 15369 and W.A. SR
Nos.105743, 105737, 105741, 105735, 105745 & 105739 of 2014
Chengalvarayan Co-operative Sugar Mills Ltd.,
Periyasevalai
Ulundurpet Taluk, Villupuram District .. Petitioner/Appellant in
all CMPs & W.A.SRs.
Vs.
1.R.S.Natarajan .. 1st Respondent in
C.M.P. Nos.15356 &
15363
2.A.Arokiaraj .. 1st Respondent in
C.M.P. Nos.15358 &
15364
3.S.Chinnamuthu .. 1st Respondent in
C.M.P. Nos.15360 &
15369
4.The Government of Tamil Nadu
Rep. by its Secretary, Industries Department
Fort St. George, Chennai - 600 009
5.The Commissioner of Sugar and the
Registrar of Co-operative Societies for
Co-operative Sugar Mills
474, Anna Salai, Nandanam
Chennai - 600 0035
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6.The Joint Commissioner of Sugar
EVR Buildings, 474, Anna Salai
Chennai - 600 035
7.The Co-operative Sub-Registrar
(Arbitration and Execution)
474, Anna Salai
Nandanam, Chennai - 600 035 .. Respondents 2 to 5 in
all CMPs
***
Prayer in CMPs : Civil Miscellaneous Petitions filed under Order IV Rule
9(4) of A.S.Rules to condone the delay of 1848 days in representing the
appeal in W.A.SR Nos.105743, 105737, 105741, 105735, 105745 &
105739 of 2014.
Prayer in W.A.SRs.: Writ Appeals filed under Clause 15 of Letters
Patent against the common order dated 19.10.2011 made in W.P.
Nos.36202, 36203, 36205, 36206, 36207 & 36209 of 2002.
***
For Petitioner/Appellant: Mr.R.Balaramesh
in all CMPs & W.A.SRs.
For Respondents : Mr.D.Ravichander,
State Govt. Counsel for R2 in all
CMPs. & W.A.SRs.
COMMON ORDER
(delivered by PUSHPA SATHYANARAYANA, J.)
These civil miscellaneous petitions have been filed for condoning
the delay of 1848 days in representing the appeal in W.A.SR
Nos.105743, 105737, 105741, 105735, 105745 & 105739 of 2014.
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2. For better appreciation of the case, few relevant facts, which are
necessary for the disposal of these civil miscellaneous petitions are that,
there was a complaint from Cane Growers Association of the
Chengalvarayan Co-operative Sugar Mills Ltd/appellant herein, to the
fifth respondent herein/Commissioner of Sugar and the Registrar of Co-
operative Societies for Co-operative Sugar Mills. The said complaint was
received by the Commissioner in the year 1996. Based on the same, the
Commissioner of Sugar, had ordered an enquiry under Section 81 of the
Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as
'the Act') and the Enquiry Officer had recommended surcharge
proceedings against the respondents 1 to 3 herein, who are writ
petitioners.
3. The Joint Commissioner of Sugar was appointed as the Enquiry
Officer, to conduct the surcharge proceedings and notice was issued.
Challenging the surcharge notice, a writ petition was filed and the same
was disposed of on 16.09.1998, giving a direction to the Registrar of Co-
operative Societies and the Joint Commissioner of Sugar, to consider the
objection raised with respect to the delay in the enquiry. Thereafter, on
19.02.2002, the Government had exempted the appellant Sugar Mill
from Section 81(4) of the Act. Challenging the said exemption, the writ
petitioners/respondents 1 to 3 herein, had filed W.P. Nos.36202, 36203,
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36205, 36206, 36207 & 36209 of 2002, which came to be disposed of on
19.10.2011 by a common order. Against the said order, the above writ
appeals are preferred by the Sugar Mill, with a delay in paying deficit
court fee and the delay in re-presenting the appeals.
4. The dates that are relevant for deciding the above petitions are:
On 17.04.1997, an enquiry under Section 81(4) of the Act, was ordered.
The period of three months as referred in the said section, was over on
16.07.1997, before which time, neither the enquiry commenced nor an
extension in terms of Rule 104 of the Tamil Nadu Co-operative Society
Rules, 1988 was obtained. As no extension of time was sought beyond
the period of three months, which could also not exceed beyond six
months in aggregate, the proceedings automatically abated. However,
the enquiry was commenced on 03.09.1997 and it was completed on
13.04.1998, which was without jurisdiction and against the provisions of
the Act.
5. Pursuant to the said enquiry, notice under Section 87 of the Act,
was sent to the writ petitioners. Upon challenge of the same, this court
had directed to decide the issue of limitation as a preliminary issue. While
so, in exercise of powers conferred by clause (a) of Section 170 of the
Act, a Government Order in G.O.(D) No.49 Industries (MIC2) Department
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dated 19.02.2002 was passed exempting the appellant society from the
provisions of Section 81(4) of the Act and to ratify the action of the
Enquiry Officer. Once again the said G.O. was put to challenge in W.P.
Nos.36202, 36203, 36205, 36206, 36207 & 36209 of 2002. The said writ
petitions were disposed of by a common order dated 19.10.2011,
quashing the above referred Government Order. The said orders are
challenged in the above writ appeals, which are filed with a delay.
6. It is to be noted that the original proceedings commenced, when
complaint was received from the Cane Growers Association of the
appellant Sugar mill in the year 1996 and in 1997, an enquiry under
Section 81 of the Act was ordered and the surcharge notice was
challenged in the year 1998 and the exemption came to be granted in
the year 2002. The writ petitions were filed in the year 2002, which were
decided in the year 2011. The appeals are now sought to be filed in the
year 2021, after 10 years, with a delay of 1848 days in representing the
above appeals.
7. In the affidavit filed in support of the petition to condone delay,
it is stated that only when W.P. No.28742 of 2013 was disposed of by
this court on 09.12.2020 and the order copy was received by the
appellant, they came to know about the disposal of the batch of writ
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petitions. Thereafter, it is stated that steps were taken to file the
appeals. Order was passed on 19.10.2011. The appeals were filed on
08.12.2014, after a delay of more than three years. Papers were
returned on 11.12.2014 and they are represented with a delay of 1848
days.
8. The Registry had granted 10 days time for representing the
papers after complying with the defects pointed out. Such order passed
by granting time to represent, is an administrative order and not a
judicial order and therefore, it was contended that the delay not
necessarily be under Section 148 and could be under Section 151 of CPC.
As mentioned supra, there is a delay even in payment of the court fees
and it cannot be disputed that as per Section 149 of the CPC, the Court
of Law has the discretion at any stage to allow the individual to make
good the defect and validate the document. Nonetheless the discretion is
to be exercised by the Court of Law in accordance with the established
judicial principles and the same cannot be claimed as a matter of right.
In normal circumstances, discretion in this regard, should be exercised in
favour of the party, except in case of mala fides or similar reasons
resulting great injustice to the opposite side.
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9. In the instant case, even going by the dates given, the
proceedings had reached finality on the day when the G.O.(D) No.49
exempting the appellant society was passed in 2002. Prior to this, the
parties were before the court from 1998. The appellant has now filed
seeking re-presentation of the appeal memoranda with a delay of 1848
days. The filing of the writ appeals itself was beyond the period of three
years, which is yet to be condoned. That apart, the appeals were also not
presented properly, as there was a deficit in payment of court fees and
also there was a delay in paying the deficit court fees. In such
circumstances, it would be unfair to permit the appellant by condoning
the delay at every stage, which would substantially prejudice the interest
of the writ petitioners/respondents 1 to 3 herein.
10. In this regard, reliance is placed on the decision of the Hon'ble
Apex Court in H.Dohil Construction Company Private Limited vs.
Nahar Exports Limited and Another reported in (2015) 1 SCC 680,
wherein, the Hon'ble Apex Court at paragraph Nos.19 to 21 and 24, held
as under:
19. Having considered the respective submissions, on
this question, we find that the submissions made on behalf of
the appellant(s) are forceful. It is true that the delay in filing
the appeals was only of 9 days and that the longer delay was
only relating to the refiling of the appeal papers. But even if it
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is related to refiling of the appeals, the net result is that the
appeals could be taken into records only when such a delay in
refiling is condoned. Therefore, if the refiling had been made
within the time granted by the Registry of the High Court, no
fault can be found with anyone much less with the party
concerned or whomsoever was entrusted with the filing of the
papers into the Registry. But when an enormous delay of
nearly five years occurred in the matter of refiling, it definitely
calls for a closer scrutiny as to what was the cause which
prevented the party concerned from refiling the papers in time
to enable the Registry to process the papers and ascertain
whether the papers were in order for the purpose of
numbering the appeals.
20. In the case on hand, the delay in refiling was of
1727 days. As rightly pointed out by the learned Senior
Counsel for the appellant(s), the respondents paid the scrutiny
charges on 11-4-2008 as disclosed in Receipt No. 73 issued by
the High Court of that date. When the appeal papers were filed
on 6-9-2007 and the scrutiny charges were paid on 11-4-
2008, it was quite apparent that the processing of papers of
the appeals for its registration did commence in the month of
April 2008. Thereafter, if rectification of whatever defects were
not carried out by the respondents or its counsel between April
2008 and May 2012, it is the bounden duty of the respondents
to have satisfactorily explained such a long delay in refiling.
When we refer to the applications filed on behalf of the
appellant(s), we find that there was no convincing explanation
as to how the respondents were disabled from rectifying the
defects pointed out by the Registry and refiling the appeal
papers within time. The respondents only attempted to throw
the blame on the previous counsel to whom appeal papers
were entrusted for filing in September 2007. As pointed out by
the learned Senior Counsel for the appellant(s), there were no
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details as to whom it was entrusted and what were the steps
taken to ensure that the appeals filed were duly registered for
pursuing further remedy as against the said judgment of the
trial court. As a matter of fact the appeal papers were filed
without payment of any court fee. This only affirms the stand
of the appellant(s) that there was no bona fide in the
respondents' claim and that they were seriously interested in
challenging the judgment of the trial court as against the non-
grant of relief of specific performance. We also fail to see as to
how Respondent 1 which is a limited company involved in the
business of exports, which would certainly have its own legal
department, can plead that after entrusting the papers to
some counsel whose name was not disclosed even before this
Court did not even bother to take any follow-up action to
ensure that its appeals were duly registered in the High Court.
In this context the maxim vigilantibus non dormientibus jura
subveniunt (law assists those who are vigilant and not those
who sleep over their rights) aptly applies to the case on hand.
The respondents simply by throwing the blame on the previous
counsel whose identity was not disclosed claimed that
irrespective of the enormous delay of 1727 days in refiling the
same should be condoned as a matter of course as there was
only 9 days' delay involved in filing the appeals.
21. We express our total disinclination to countenance
such a stand made on behalf of the respondents. In this
respect, the claim of the appellant(s) that serious prejudice
would be caused to the appellant(s) merits acceptance. In the
rejoinder filed by the appellant(s) to the respondents' counter,
the appellant(s) has explained as to how they had to spend a
huge amount to upkeep the property by approaching the
authorities of Delhi Municipal Corporation, the enormous
amount spent to the tune of Rs 28,00,000 by way of house tax
from the year 2004 up to this date and various other
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improvements made in the property during the period wherein
the delay in the matter of filing of the appeals and refiling was
made by the respondents. Therefore, the principle that the law
of limitation is based on a sound public policy and therefore in
the absence of bona fide reasons the applications for
condonation of delay should be strictly construed assumes
significance.
24. When we apply those principles of Bhattacharjee
case [Esha Bhattacharjee v. Raghunathpur Nafar Academy,
(2013) 12 SCC 649 : (2014) 1 SCC (Civ) 713 : (2014) 4 SCC
(Cri) 450 : (2014) 2 SCC (L&S) 595] to the case on hand, it
has to be stated that the failure of the respondents in not
showing due diligence in filing of the appeals and the
enormous time taken in the refiling can only be construed, in
the absence of any valid explanation, as gross negligence and
lacks in bona fides as displayed on the part of the
respondents. Further, when the respondents have not come
forward with proper details as regards the date when the
papers were returned for refiling, the non-furnishing of
satisfactory reasons for not refiling of papers in time and the
failure to pay the court fee at the time of the filing of appeal
papers on 6-9-2007, the reasons which prevented the
respondents from not paying the court fee along with the
appeal papers and the failure to furnish the details as to who
was their counsel who was previously entrusted with the filing
of the appeals cumulatively considered, disclose that there was
total lack of bona fides in its approach. It also requires to be
stated that in the case on hand, not refiling the appeal papers
within the time prescribed and by allowing the delay to the
extent of nearly 1727 days, definitely calls for a stringent
scrutiny and cannot be accepted as having been explained
without proper reasons. As has been laid down by this Court,
courts are required to weigh the scale of balance of justice in
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respect of both the parties and the same principle cannot be
given a go-by under the guise of liberal approach even if it
pertains to refiling. The filing of an application for condoning
the delay of 1727 days in the matter of refiling without
disclosing reasons, much less satisfactory reasons only results
in the respondents not deserving any indulgence by the court
in the matter of condonation of delay. The respondents had
filed the suit for specific performance and when the trial court
found that the claim for specific performance based on the
agreement was correct but exercised its discretion not to grant
the relief for specific performance but grant only a payment of
damages and the respondents were really keen to get the
decree for specific performance by filing the appeals, they
should have shown utmost diligence and come forward with
justifiable reasons when an enormous delay of five years was
involved in getting its appeals registered."
In the above judgment, it has been held that for applicability of Section
149 CPC, the appeal papers ought to have been filed within the due date
for accepting a deficit court fees.
11. In the instant case, as the appeals have been filed beyond
three years and the court fees was also not paid and it was paid only at
the time of re-presenting, the delay cannot be condoned. Even in the
affidavit filed in support of the delay petitions, there is no sufficient cause
shown for preferring the appeals beyond the limitation and also for re-
presenting the appeal memoranda beyond five years. As has been held in
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a catenae of cases, lack of bona fides imputable to a party seeking
condonation of delay, is significant and relevant fact. In this case, the
delay is inordinate, the conduct and attitude of the appellant also clearly
reveals that there is totally inaction and negligence on its part. The
prejudice that may be caused to the writ petitioners by allowing these
applications, would outweigh the permission that may be granted to the
appellant. In such circumstances, the appellant does not deserve any
indulgence from this court, as we find total lack of bona fides in its
approach. The common order passed by the writ court had already
become final. Therefore, these civil miscellaneous petitions filed for
condonation of delay, do not deserve any merit and they deserve to be
dismissed.
12. Accordingly, the miscellaneous petitions are dismissed.
Consequently, the writ appeals are rejected at the SR stage itself.
Registry is directed to return the papers. However, there is no order as
to costs in these petitions and the appeals.
(P.S.N., J.) (K.R., J.)
24.09.2021
Index : Yes / No
Asr
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To
1.The Government of Tamil Nadu
Rep. by its Secretary, Industries Department
Fort St. George, Chennai - 600 009
2.The Commissioner of Sugar and the
Registrar of Co-operative Societies for
Co-operative Sugar Mills
474, Anna Salai, Nandanam
Chennai - 600 0035
3.The Joint Commissioner of Sugar
EVR Buildings, 474, Anna Salai
Chennai - 600 035
4.The Co-operative Sub-Registrar
(Arbitration and Execution)
474, Anna Salai
Nandanam, Chennai - 600 035
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
C.M.P. Nos.15356, 15358, 15360,
15363, 15364 & 15369 and
W.A. SR Nos.105743, 105737, 105741,
105735, 105745 & 105739 of 2014
24.09.2021
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