Madras High Court
The Project Director vs B.Rajeswari on 27 September, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
C.M.P(MD)No.9180 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
C.M.P(MD)No.9180 of 2024
in
C.M.A(MD)SR No.79016 of 2023
The Project Director,
National Highways No.7,
National Highways Authority of India
Having his Office at 83/1, SBI
First Colony Ext., (Near Gowry Krishna Hotel),
Bye-pass Road,
Madurai – 625 016.
... Appellant
Vs.
1.B.Rajeswari
2.The Special District Revenue Officer /
Competent Authority for Land Acquisition,
(National Highways – 7),
Virudhunagar.
1/15
https://www.mhc.tn.gov.in/judis
C.M.P(MD)No.9180 of 2024
3.Arbitrator / District Collector,
Collectorate Building,
Thoothukudi. ... Respondents
Prayer in CMA(MD)SR No.79016 of 2023: Appeal filed under Section
37(1) & 2 of Arbitration & Conciliation Act, 1996 to set aside the order made in
Arbitration O.P.No.84 of 2015 dated 15.03.2023 on the file of the Principal
District and Sessions Judge, Thoothukudi.
Prayer in CMP(MD)No.9180 of 2024: Petition filed under Section 5 of
the Limitation Act, to condone the delay of 108 days in filing the CMA(MD)SR
No.79016 of 2023.
For Petitioner : Mr.P.Karthick
For Respondents : Mr.D.Sachikumar
Addl. Govt. Plader for R2 and R3
Mr.R.Govindaraj for R1
ORDER
P.VELMURUGAN, J.
This petition has been filed to condone the delay of 108 days in filing the
CMA(MD)SR No.79016 of 2023.
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2.The petitioner has stated in the affidavit that the first respondent's land
was acquired for widening NH-7, for which, the second respondent fixed
compensation at the rate of Rs.172.2 per sqm with an appreciation value of 10%
and the same was received by the first respondent under protest. The first
respondent being aggrieved with the compensation awarded by the second
respondent, who is the competent authority, approached the District Collector
being an Arbitrator, under Section 3G(5) of National Highways Act, 1956 and the
same was taken on file as Arbitration Case No.E3/07/2008. The Arbitrator, by
award dated 21.10.2014, rejected the claim of the first respondent and confirmed
the award passed by the second respondent. Aggrieved by the Arbitration Award,
the first respondent preferred an arbitration original petition in Arbitration
O.P.No.84 of 2015 before the Principal District Judge, Thoothukudi. The learned
Principal District Judge allowed the Original Petition and set aside the award
passed by the Arbitrator and enhanced the compensation. Challenging the same,
the second respondent in the Arbitration Original Petition, has filed the present
appeal in CMA(MD)SR No.79016 of 2023. For filing the appeal, there is a delay
of 108 days. The petitioner has stated various facts on merits of the case. As far
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as the delay is concerned, the reason stated by the petitioner is that the Principal
District Judge, Thoothukudi made an order on 15.03.2023 and copy was made
ready on 28.06.2023. The present appeal under Section 37 of the Act could not
be filed within 90 days. Inadvertently, there is a delay in filing the CMA(MD)SR
No.79016 of 2023. The order and decreetal order copy dispatched by the learned
Principal District Judge, Tuticorin had different dates i.e., in the order copy, the
date was mentioned as 15.03.2022, but in the decreetal order copy, the date was
mentioned as 15.03.2023. Hence, there is a delay in filing the CMA(MD)SR No.
79016 of 2023.
3. On receipt of the notice, the first respondent appeared through a counsel
and filed a detailed counter stating that no valid reason has been assigned by the
petitioner except to state that different date has been mentioned in the copy of the
order and decreetal order and the delay has been occurred in taking steps for
correction of the dates in the order and decreetal order. But, the affidavit is very
much silent about when the order copy was made ready, when it was given for
correction and when it was again obtained from the Court and when the appeal
was filed. The delay has to be explained properly for each and every day and no
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proper explanation was given in the affidavit. Therefore, there is no reason to
condone the delay.
4. The learned counsel for the petitioner would submit that after obtaining
copy of the order, when they obtained an opinion for filing the appeal, they came
to know about that there was an error regarding the year of the pronouncement of
the order, whereas in the decreetal order, it is correctly given and therefore, they
resubmitted the certified copies obtained by them for correction. After correcting
the typographical error in the fair and decreetal order, they obtained the copy on
28.06.2023. The learned Principal District Judge delivered the order on
15.03.2023, whereas, in the copy of the order, it was mistakenly mentioned as
15.03.2022. Therefore, there was a delay in getting correction of the mistake.
The delay is inadvertent and neither wilful nor wanton. If the delay is condoned,
no prejudice would be caused to the first respondent. The appellant has got a
merit in the case. The Principal District Judge, invoking Section 34 of the
Arbitration and Conciliation Act, cannot sit as the appellate Court and re-
appreciate the evidence and enhance the award passed by the competent authority.
The scope of Section 34 is very limited and the learned Principal District Judge
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cannot traverse beyond the scope of Section 34. The petitioner has got a good
ground in filing the appeal. Due to inadvertent circumstances, the appeal was
filed with delay and therefore, the delay is liable to be condoned.
5. The learned counsel for the first respondent, who is the contesting
respondent, submitted that the petitioner has suppressed the material facts.
Though the petitioner has stated only about the mistake regarding the year of the
pronouncement of the order, they have not stated as to when they filed the copy
application for obtaining the copy of the fair and decreetal orders and when they
obtained the copy of the fair and decreetal orders, which is in mistake and when
they again presented the same and when they filed an application for fresh copy
and when they lastly obtained. It is well settled proposition of law that as far as
the delay is concerned, each day has to be explained, whereas, in this case, the
petitioner has filed an affidavit, wherein apart from para 14, the petitioner has
only spoken about the merit of the case and the petitioner has not explained the
actual reason for the delay and therefore, the petition is liable to be dismissed.
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6. Heard the learned counsel appearing on either side and perused the
materials available on record.
7. Admittedly, the first respondent's land was acquired for widening the
National Highways (NH-7) and the second respondent awarded compensation.
Challenging the same, the first respondent approached the Arbitrator-cum-District
Collector under Section 3(G)(5) of the National Highways Act, 1956. The
Arbitrator, after hearing both sides and considering the materials, held that there
is no legal aspect involved and the same was dismissed on 21.10.2014.
Challenging the said dismissal order passed by the Arbitrator, the first respondent
approached the Principal District Judge by filing an Arbitration Original Petition
in Arbitration O.P.No.84 of 2015. The learned Principal District Judge set aside
the order of the Arbitrator and enhanced the compensation. Challenging the said
fair and decreetal orders passed by the Principal District Judge, the second
respondent in the Arbitration Original Petition, namely, the Project Director has
filed the present petition for condoning the delay of 108 days in filing the appeal
CMA(MD)SR No.79016 of 2023.
https://www.mhc.tn.gov.in/judis
8. It is seen that the petitioner has stated the reason in his affidavit
regarding the delay in filing the appeal that the Principal District Judge passed the
order on 15.03.2023 and copy was made ready on 28.06.2023 and the appeal
could not be filed within 90 days and therefore, there was a delay of 108 days in
filing the appeal in CMA(MD)SR No.79016 of 2023. Whereas, a perusal of the
records, it is seen that the Principal District Judge passed the order on 15.03.2023
and the petitioner filed copy application only on 10.05.2023 and the stamps were
called for on 12.05.2023 and the stamps were deposited on 15.05.2023 and the
copy was made ready on 17.05.2023 and the petitioner obtained the copy on
17.05.2023 itself.
9. A perusal of the order passed by the Principal District Judge shows that
admittedly, there is a mistake in mentioning the date of pronouncement of the
order on 15.03.2023. In the said place, instead of mentioning 15.03.2023, it was
mistakenly mentioned as the year 2022. However, the petitioner subsequently,
filed a fresh copy application on 09.06.2023 and the stamps papers were called
for on 14.06.2023 and the same were deposited on 20.06.2023 and the copy was
made ready on 28.06.2023 and the same was delivered on 28.06.2023. Whereas,
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the appeal filed only on 18.10.2023. The appeal has to be filed within a period of
90 days. In case they are not able to file the appeal within a period of 90 days,
they have to file the application to condone the delay by mentioning the reasons
for the delay. If the reason given by the petitioner is satisfied by the Court, the
Court can condone the delay. The condone the delay beyond 90 days is not an
automatic one and the Court must satisfy that the valid reason has been assigned.
Whereas, in this case, the petitioner has not given a valid reason except the word
'inadvertently' and filed the appeal with delay and also they have stated the reason
that there is a mistake in the order regarding the year of the pronouncement.
10. Further, a perusal of the records would show that admittedly, the order
was pronounced on 15.03.2023, whereas, even the petitioner has not filed copy
application immediately within the stipulated time and a perusal of the records, it
is seen that the petitioner originally filed the copy application only on
10.05.2023, which has not been mentioned in the affidavit and in that application,
the copy was delivered on 17.05.2023. Hence, there was a delay of 55 days. The
petitioner has not filed the fresh copy application immediately after rectification
of the mistake. The delay has not been properly explained for the purpose of
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getting the copy of the order, which delivered on 17.05.2023. The petitioner
originally filed the copy application only on 10.05.2023 and the copy was also
delivered on 17.05.2023. They filed the fresh copy application only on
09.06.2023 and the copy was received after rectifying the mistake, on 28.06.2023.
The appeal has been filed thereafter only on 18.10.2023.
11. Each and every day of delay has to be explained. The petitioner has not
given any reason as to why they have not filed the copy application in time and
also why they have not filed the appeal even after obtaining the corrected copy of
the order in time. Therefore, the delay has not been properly explained. In this
regard, it is relevant to refer the case of the Hon'ble Supreme Court in
Government of Maharashtra (Water Resources Department) Rep. by Executive
Engineer vs. Borse Brothers Engineers and Contractors Pvt. Ltd., reported in
(2021)6 SCC 460, wherein it has been held that the delay of beyond 90 days is
only an exception and not a rule. The relevant para 58 is extracted hereunder:-
“58. Given the object sought to be achieved under both the
Arbitration Act and the Commercial Courts Act, that is, the speedy
resolution of disputes, the expression “sufficient cause” is not
elastic enough to cover long delays beyond the period provided by
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the appeal provision itself. Besides, the expression “sufficient
cause” is not itself a loose panacea for the ill of pressing negligent
and stale claims. This Court, in Basawaraj v. Land Acquisition
Officer, (2013) 14 SCC 81, has held:
9. Sufficient cause is the cause for which the
defendant could not be blamed for his absence. The
meaning of the word “sufficient” is “adequate” or
“enough”, inasmuch as may be necessary to answer the
purpose intended. Therefore, the word “sufficient”
embraces no more than that which provides a platitude,
which when the act done suffices to accomplish the
purpose intended in the facts and circumstances existing
in a case, duly examined from the viewpoint of a
reasonable standard of a cautious man. In this context,
“sufficient cause” means that the party should not have
acted in a negligent manner or there was a want of bona
fide on its part in view of the facts and circumstances of a
case or it cannot be alleged that the party “has not acted
diligently” or “remained inactive”. However, the facts and
circumstances of each case must afford sufficient ground
to enable the court concerned to exercise discretion for the
reason that whenever the court exercises discretion, it has
to be exercised judiciously. The applicant must satisfy the
court that he was prevented by any “sufficient cause” from
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prosecuting his case, and unless a satisfactory explanation
is furnished, the court should not allow the application for
condonation of delay. The court has to examine whether
the mistake is bona fide or was merely a device to cover
an ulterior purpose. (See Manindra Land and Building
Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] ,
Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970
SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2
SCC (Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj
Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5
SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964
SC 993] this Court explained the difference between a
“good cause” and a “sufficient cause” and observed that
every “sufficient cause” is a good cause and vice versa.
However, if any difference exists it can only be that the
requirement of good cause is complied with on a lesser
degree of proof than that of “sufficient cause”.
11. The expression “sufficient cause” should be
given a liberal interpretation to ensure that substantial
justice is done, but only so long as negligence, inaction or
lack of bona fides cannot be imputed to the party
concerned, whether or not sufficient cause has been
furnished, can be decided on the facts of a particular case
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and no straitjacket formula is possible. (Vide Madanlal v.
Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and
Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 :
AIR 2002 SC 1201] .”
12. In this case, the delay has not been properly explained and the reason
also has not been given for delay in filing the copy application. Therefore, by
relying the above said judgment, this Court finds that the petitioner has not made
out the requirements that he has bona fide reason. Though the length of the delay
is not the matter, but the reason is only the significance. If there is valid reason,
the Court normally will not consider the length of the delay. If there is no reason,
the Court could not consider the days of the delay. Though in this case, the delay
in filing the appeal is 108 days, however, the petitioner has not given any
particular about the delay and proper reason for the delay. Therefore, as held by
the Hon'ble Supreme Court, the delay is only an exception and not a rule.
Further, it is well settled proposition of law that at the time of considering the
application for the delay, the Court need not go into depth about the merits of the
case. The affidavit filed by the petitioner has spoken almost upto 13th para only
about the proceedings and also the merit of the case and only in 14th para,
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mentioned about the delay, however, there is no valid and acceptable reason given
for the delay. It is well settled that while deciding an application for condonation
of delay, merits of the case cannot go into and what has to be seen that as to
whether sufficient cause has been shown by the applicant for condoning the delay
in filing the appeal before the Court. Therefore, under these circumstances, this
Court is not satisfied with the reason stated in the accompanying affidavit.
Hence, the present petition filed to condone the delay of 108 days in filing the
appeal in CMA(MD)SR No.79016 of 2023, is dismissed. No costs.
[P.V.,J.] [K.K.R.K.,J.]
skn 27.09.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes
To
1.The Principal District and Sessions Judge,
Thoothukudi.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN, J.
skn
in
27.09.2024
https://www.mhc.tn.gov.in/judis
