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Judgment
Pratap Singh, J.—This Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging the order passed in E.Ma. 87
of 1991 in unnumbered C.M.A. of 1991 on the file of the Co-operative Tribunal, Madurai. Short facts are:- Alleging that revision petitioners have
not paid the amount due on a mortgage, the respondent had filed arbitration proceedings No. 378/88-89 against both the petitioners. The case
was posted for enquiry on 15.12.1989. Notice informing that award was posted on 13.12.1989 was served on the first petitioner on 18.12.1989.
An appeal was filed before the Co-operative Tribunal, Madurai, against the award said to have been passed on 15.12.1989, belatedly with
petition to condone the delay. That was resisted by the respondent. After hearing both sides, the court below has dismissed the petition, praying
condonation of the delay. Aggrieved by that order, this revision petition is filed.
Mr. V. Shanmugham, Learned Counsel appearing for the revision petitioners, would submit that it is the petitioner''s case that on 15.12.1989,
the first petitioner attended the hearing, that neither the respondent nor the arbitrator were present and so he gave two letters to the staff available
in the office, one requesting information with regard to the next hearing and the other letter disputing the liability. But yet, notice was served on the
first petitioner informing him that an award was passed for a sum of Rs. 88,000/- and odd in respect of Loan No. 98. Mr. V. Shanmugham,
Learned Counsel for the revision petitioners would submit that no award contemplated under the provisions of the Tamil Nadu Co-operative
Societies Act, 1983 was passed, that an appeal is provided u/s 152 of the said Act, that time fixed for filing the appeal is 60 days from the date of
service of the award and inasmuch as no ''award'' was passed, there cannot be any delay at all. He would further submit that the court below has
not construed this aspect of the case in its proper perspective and has come to an erroneous conclusion.
Per contra, Learned Counsel for the respondent would submit that award has been served on the petitioners and inordinate delay had occurred.
So the order of the court below was right.
I have carefully considered the submissions made by Learned Counsels.
Before considering the rival contentions. I shall first refer to the decision in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji
and Others, in which the Apex Court had laid down the principles on which the question of delay is to be considered and has further held that a
liberal approach should be adopted. The principles enunciated are as follows:
(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As
against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) ""Every day''s delay must be explained does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s
delay? The doctrine must be applied in a rational common sense pragmatic manner
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for, the
other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does
not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of
removing injustice and is expected to do so.
(7) Mr. V. Shanmugham, Learned Counsel appearing for the revision petitioners, produced Xerox copy of the notice served on the first
respondent/revision petitioner herein. In the typed set, typed copy of the notice is filed. It is in Tamil. If translated into English, it would read as
follows:-
Notice in respect of arbitration proceedings No. 371/88-89, the enquiry was posted on 15.12.1989 and he appeared for the enquiry and an
award has been passed that he should pay Rs. 88,092/- to the bank in respect of Loan No. 98.
According to Rule 107(8) of the Rules framed under the Tamil Nadu Co-operative ''Societies Act, 1983 (which I shall hereinafter refer to as the
Act""), the award shall be reduced to writing and shall also contain an order as to costs and if the award is for payment of money, it shall contain
an order as to further interest, which shall be a percentage per annum from the date immediately following the date upto which interest was allowed
and included in the decree amount and that a copy of the award shall be communicated free of cost by the Arbitrator, who decides the dispute, to
the parties by personal delivery under acknowledgment or under certificate of posting. The notice filed in the typed set, does not satisfy the
requirements of the said Rule 107(8). It is merely a notice informing the amount fixed under the award. It cannot be construed as an award. As per
Section 152 (3) of the Act; 60 days time is given for filing appeal from the date of the communication of award. Section 152 (3) of the Act, reads
as follows:-
Any appeal under sub-section (1) or sub-section (2) shall, subject to the other provisions of the Act, be preferred within sixty days from the date
of communication of decision, order, award, refusal, registration or approval complained of, but the Appellate Authority may admit an appeal
preferred after the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within 60 days.
The above would show that starting point of the period of limitation is the date of the communication of the award. If the petitioner''s case that the
notice referred to supra, alone was served on the first petitioner, then the starting point for computing the period has not arisen at all. On the other
hand, Learned Counsel for the respondent would submit that an award itself was served on the petitioners, apart from the notice, mentioned supra.
Without taking evidence on this aspect and coming to a definite conclusion as to whether award was passed and if so, on what date, and whether
such an award, conforming to the Rules, was served on the revision petitioners, the court below has passed the impugned order and hence it is
clearly an erroneous order which has to be set aside by exercising powers under Article 227 of the Constitution of India. Taking that view of the
matter, the impugned order is set aside and the matter is remitted back to the court below. The court below is directed to take the petition on file in
the same number and give opportunity to both sides to let in evidence, oral and documentary, and thereafter decide the matter in issue, in
accordance with law and in the light of the observations made in this order. The Civil Revision Petition is allowed and direction, as given as above.
The court below shall give a decision within four weeks from the date of receipt of a copy of this order. No costs.