Jimmy Travels vs Lakhwinder Singh and Others

Vijender Singh Malik, J.—On the death of Avtar Singh, on account of the injuries suffered by him in a roadside accident that took place on

19.8.2001, his dependants Santokh Singh and others brought a claim petition u/s 166 of the Motor Vehicles Act, 1988 (for short, ''the Act''). It

has been decided vide the award dated 26.8.2003 by the Motor Accidents Claims Tribunal, Ludhiana (for short, ''the Tribunal'') awarding a sum

of Rs. 6,00,000 as compensation. While respondent Nos. 1 to 3 were held jointly and severally liable to pay compensation, National Insurance

Co. Ltd., respondent No. 3, was given the right to recover the same from respondent Nos. 1 and 2 for the reason that respondent No. 1 was not

holding a valid driving licence at the time of the accident. Challenging this award, Jimmy Travels, respondent No. 2, has brought the appeal.

However, the appeal having been filed beyond limitation, an application bearing Civil Misc. No. 31018-CII of 2010 u/s 5 of the Limitation Act

read with section 151, CPC for condonation of delay of 2,558 days has been filed along with the grounds of appeal. The plea taken by the

appellant in the application is as under:

The delay is claimed to be unintentional because earlier the appellant was a partnership firm with Devinder Singh Sidhu and Manjit Singh as

partners. A dispute was going on between the two partners and ultimately the firm was dissolved on 1.7.2004. Devinder Singh Sidhu is the sole

proprietor of Jimmy Travels now. The case was being pursued by Manjit Singh. He never informed Devinder Singh Sidhu about the present case.

Devinder Singh Sidhu has come to know about the case now when National Insurance Co. Ltd. has filed execution for recovery of the amount

from the appellant after paying the award amount to the claimants. It is repeated that the delay in filing the appeal is neither intentional nor

avoidable. It is further claimed that if the delay is not condoned, irreparable loss would occur to the appellant. Hence, the prayer is made. The

application is supported by an affidavit of Devinder Singh Sidhu.

The application is opposed by respondent Nos. 2 and 5. They have claimed that there are no cogent reasons furnished by the appellant for

explaining the delay of more than 7 years and 3 months. According to them, rights have come to be vested in the answering respondents by the

lapse of time which cannot be taken away without explaining the delay by very cogent reasons. It is claimed that the entire application fails to

disclose any reason for delay. It is claimed that the appellant was duly represented through counsel and, therefore, passing of the award on

26.8.2003 was very much in the knowledge of the appellant. It is denied that the appellant did not come to know about the award at the time of

passing of the same. It is further claimed that even if the plea of dissolution of the partnership on 1.7.2004 is accepted, the award was passed on

26.8.2003 and the firm was dissolved about a year thereafter. The aforesaid pleas taken by way of preliminary objections have been repeated

suitably in the reply on merits and the application is prayed to be dismissed.

I have heard Mr. Manjit Singh Khaira, Senior Advocate, assisted by Mr. Dharminder Singh, Advocate, learned counsel for the appellant, and

Mr. Ashwani Talwar, learned counsel for respondent Nos. 2 and 5. While the appeal against the claimants had been dismissed by this court vide

order dated 18.5.2011, none appears for respondent Nos. 6 to 8. I have gone through the record carefully.

Learned senior counsel for the appellant has reiterated the plea taken out in the application. According to him, Devinder Singh Sidhu and Manjit

Singh had been the partners of the firm and a dispute was going on between the two, which ultimately ended with dissolution of the firm on

1.7.2004. According to him, Manjit Singh was pursuing their defence in this case and he did not inform Devinder Singh Sidhu, who is now the sole

proprietor of Jimmy Travels.

Learned counsel for the appellant has further submitted that power has been conferred upon the courts u/s 5 of the Limitation Act in order to

enable the court to do substantial justice to the parties by disposing of the matters on merits. It is further submitted by him that expression

''sufficient cause'' used in section 5 of the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which

subserves the ends of justice. He has cited before me a case reported as Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and

Others, , to support his submissions. According to him, the appellant was going to stand to no benefit by bringing the appeal late. He has submitted

that the delay is, therefore, required to be condoned. The other cases cited before me are reported as Lal Singh v. State of Haryana, 2002 (4)

RCR (Civil) 634 and State of M.P. v. Pradeep Kumar, 2000 (4) RCR (Civil) 730.

Learned counsel for respondent Nos. 2 and 5 has submitted that if the delay is of short duration, the approach to be adopted should be liberal

but if the delay is inordinate, a stricter approach should be adopted. In this regard, he has cited before me the case of Oriental Aroma Chemical

Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, , where the Hon''ble Supreme Court of India has observed that no

hard and fast rule could be laid down in dealing with the applications for condonation of delay and that Hon''ble Apex Court has justifiably

advocated adoption of a liberal approach in condonation of delay of short duration and a stricter approach where the delay is inordinate.

Learned counsel for respondent Nos. 2 and 5 has further submitted that the partnership firm was dissolved on 1.7.2004 while the award was

passed on 26.8.2003 and there was a period of one year after passing of the award during which the partnership firm survived. According to him,

nothing has come on record to show that Manjit Singh and Devinder Singh Sidhu were having such relations that they were not on speaking terms.

According to him, the law of limitation cannot be construed liberally to the extent of taking away a substantive right of a party. According to him,

the delay in this case is of 7 years and 3 months and this delay cannot be explained by just saying that the partners of the firm were having a dispute

between them and that the firm was dissolved on 1.7.2004 leaving Devinder Singh Sidhu as the sole proprietor of the firm.

One thing is clear from the facts of the case before me that the delay in bringing this appeal is definitely inordinate. More than 7 years and 3

months is the period by which this appeal is delayed. So as per the decision of Hon''ble Supreme Court of Oriental Aroma Chemical Industries

Ltd. Vs. Gujarat Industrial Development Corporation and Another, , the approach for condoning this delay should be stricter.

When stricter approach is to be made to the prayer for condonation of delay, it is to be shown by the appellant as to what were the disputes

between the partners and how Devinder Singh Sidhu could not come to know of the passing of the impugned award before dissolution of the firm,

while the award had been passed about a year earlier to the alleged dissolution of the firm. By passage of 7 years and 3 months, the rights of the

parties have come to be settled and the award cannot be set aside lightly. There is no plea of the appellant that driving licence No. 4441/82-83

was a genuine driving licence. In the absence of this plea, it cannot be said that the case of the appellant to be considered in the appeal is

meritorious. So, there is no ground made out by the appellant for condonation of inordinate delay of 2,558 days in bringing this appeal.

Consequently, the application for condonation of delay is dismissed. The appeal brought by the appellant is, consequently, held to be time-barred

and is also dismissed.