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Judgment
MP-FE-476/HYD/2019 (COD) & MP-FE-477/HYD/2019 (COD)
The present applications for consideration are the applications for condonation of delay in filing applications for substitution of Legal Heirs (LRs) of the deceased appellant who was common in both the appeals. The deceased Shri M. Ramesh Babu filed the appeal vide appeal no.FPA-FE- 300/HYD/2009 in the capacity of Managing Director of M/s. Sree Sanjay Agro Traders Pvt. Ltd. Whereas the appeal no. FPA-FE-301/HYD/2009 has been filed by the company M/s. Sree Sanjay Agro Traders Pvt. Ltd. through Shri M. Ramesh Babu, Managing Director.
A common application for substitution of legal heirs has been filed under Section 28 of FEMA, 1999 and rules made thereunder read with order XXII, Rules 4 & 5 CPC read with Section 151 CPC and Section 5 of the Limitation Act on dated 01.11.2018 by the Company M/s. Sree Sanjay Agro Traders Pvt. Ltd. represented by authorized signatory/director Shri Sanjay Kumar alongwith a copy of death certificate dated 14.11.2017 issued by Municipal Corporation Guntur. In the said common application, it is contended that Shri M. Ramesh Babu died on 26.10.2017.
On 07.05.2019, the learned counsel for the appellants sought time to file condonation of delay application for delay in filing the substitution of legal heirs application and time was allowed to file the same. An application for condonation of delay was filed on 27.05.2019. In the said application, the proposed LRs of the deceased prayed to condone the delay of 296 days in filing the application for substitution of Legal Representatives/Heirs inter alia on the following grounds:
a) That by Order dated 07.05.2019, this Hon’ble Tribunal has given liberty to the Appellant to file an Application for Condonation of Delay in filing Application for Substitutions of LRs in view of the original Appellant Sh. Ramesh Babu Muppalaneni, the Managing Director of the Appellant Company i.e. M/s. Sanjay Agro Traders (P) Ltd., Guntur having died on 26.10.2017, after prolong illness and pain of emotional suffering due to injustice done to him by the Impugned Order dated 15.09.2008 so unjustly and improperly passed. That family members are totally dejected and sad due to the sad demise of their near and dear one and by also said effect of the said Impugned Order. That this fact could not be brought on record primarily due to such sad situations in the family and also due to honest oversight. The Appellant Company stands to no gain by this late submission and the latches is bonafide and no voluntary. That it is merely inadvertence and human error that the Application could not be filed in time. That Applicants/Appellants Company is from Hyderabad, AP/Telangana. That family members are totally dejected and sad due to the sad demise of their near and dear one and by also said effect of the said Impugned Order. The delay in filing the said Application for substitution is not deliberate or intentional. It had happened just for honest human error and certain exigencies which were beyond control of the LRs of the Appellants as well as Advocate for the Appellants. Hence, some communication gap has caused. That was made available by email to the Counsel for the Appellants on
05.0.2018. That when the fact of death came to knowledge of the Counsel for the Appellant on 5th September 2018, he has submitted before this Hon’ble Tribunal during proceedings dated 06.09.2018 seeking to file appropriate application for substitution of legal representatives/heirs and bring them on record. This Hon’ble Tribunal has by Order dated 06.09.2018 has given the Appellants liberty to appropriate application in that regards.
Delay so caused is not deliberate.
b) That for lack of information in time and details of the above said legal heirs and addresses details since was not available with the Counsel for the Appellants in both the matter, hence, filing of the present application got delayed. That for delay in filing of the application for substitution, it is respectfully submitted that the present application for substitution of legal heirs of the Managing Director of the Appellant Company Sh. Ramesh Babu Muppalaneni and the delay and/or latches of 296 days in filing the application for substitution may kindly be condoned in the interest of justice otherwise irreparable loss and injury would be caused to the Appellants and the Legal Heirs of the deceased Sh. Ramesh Babu Muppalaneni, the Managing Director of the Appellant Company i.e. M/s. Sanjay Agro Traders (P) Ltd., Guntur.”
On the other hand, reply has been filed on behalf of the respondent wherein, inter-alia following grounds have been taken with a prayer to dismiss the application as no sufficient cause has been shown in the application:
a) In the present case, the Appellant took the plea that “that the family members are totally dejected and sad due to the sad demise of their near and dear one and by also said effect of the said Impugned Order. That this fact could not be on record primarily due to such sad situation in the family and also due to honest oversight.”
b) Even though assuming without prejudice to the oral arguments and the stand of the Respondent, that the family members were in grief of the loss, the Advocate representing the Appellants should have moved an application for bringing the legal heirs on record. The application does not state and reasonable cause reflecting as to how the Counsel for the Appellant was prevented from moving a timely application before this Hon’ble Tribunal.
c) In view of the above reliance is placed on the judgment of Hon’ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy (AIR
1998 SC 3222) wherein it has been held that:
“The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts.
So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy.
The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for legislatively fixed period of time.”
Heard both sides. It is an undisputed fact that the deceased appellant died on 26.10.2017 and the common application for substitutions of LRs has been filed on 01.11.2018 i.e. around 370 days from the date of death of the deceased appellant. Therefore, it is not agreed that there is only 296 days delay as pleaded by the appellants in their application for condonation of delay. In the said application the appellants have put the blame on the impugned order as the cause of prolong illness and death. It is also inter-alia contended therein that the family members are totally dejected and sad due to the said demise of their near and dear one. The appellant’s company stands to no gain by this late submission and the delay in filing the application for substitution of LRs is not deliberate or intentional and that the fact of death came to the knowledge of the counsel for the appellant on 05.09.2018 and informed the Tribunal during proceedings dated 06.09.2018 seeking to file an appropriate application for substitution of legal representatives/heirs and bring them on record.
The aforesaid reasons are general in nature. There is a huge delay of 370 days in filing the application. It is not the case of the proposed appellants that they are not aware of the pendency of the appeals before Appellate Tribunal, it is also not the case that the proposed LRs were not running the Company or that the Company was closed after the sad demise of deceased appellant for one year.
The main consideration before this Tribunal is whether there are sufficient causes on the part of the proposed LRs in filing the application for substitutions of LRs. As per the Judgment passed by Hon’ble Supreme Court inK atari Suryanarayana & Ors. Vs. Koppisetti Subba Rao & Ors.
2009 (11) SCC 183, their Lordships noted certain principles applicable for the purpose of considering applications for setting aside abetment. The principles are reproduced below:
“(i) The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words “sufficient cause” in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is no on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case.
For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to a lawyer’s lapses more leniently than applications relating to a litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refilling the appeal after rectification of defects.
(v) Want of “diligence” or “inaction” can be attributed to an appellant only when something required to be done by him, is not
done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.”
In the present case, there is not only a huge delay but also there is no sufficient explanation as to why there is a delay of 370 days in filing the application.
As per the Judgment passed by Hon’ble Supreme Court of India in the Civil Appellate Jurisdiction in Civil Appeal Nos.8183-8184 of 2013 arising out of S.L.P. (C) Nos. 24868-24869 of 2011 in the matter of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others, their Lordships noted certain principles applicable for the purpose of introducing liberal construction normally is to introduce the concept of reasonableness as it is understood in its general connotation. The relevant paras of the judgment are reproduced below:
“12. A reference to the principle stated in Balwant Singh (dead) v. Jagdish Singh and others[15] would be quite fruitful. In the said case the Court referred to the pronouncements in Union of India v. Ram Charan[16], P.K. Ramachandran v. State of Kerala[17] and Katari Suryanarayana v. Koppisetti Subba Rao[18] and stated thus:-
“25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.
The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved.
If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.”
Recently in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai[19], the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil[20] wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Thereafter, the two-Judge Bench ruled thus: -
“23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.” Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years.”
No doubt while dealing with the application for condonation of delay a liberal approach is to be made. While considering the application liberally it is also to be considered the length of delay, the bonafideness on the part of the appellants, non-deliberate action of the applicants, merit of the case and also the prejudice to be caused to the non-applicants in favour of whom certain benefit has accrued.
Heard and considered the application for the condonation of delay in filing the applications for substitutions of LRs, the reply filed by the respondent, the oral submissions and the materials available on record.
Also considered the judgments of Hon’ble Supreme Court passed in the matters referred above. Though I am not convinced with the explanations offered by the applicants but considering the case that if the application is not allowed then the merit of the appeals cannot be considered and they would be bound to pay the penalty imposed by the Adjudicating Authority. No doubt the allowing of the application would prejudice the benefits accrued to the respondent but that can be compensated by imposing cost of Rs.25,000/- (Rupees Twenty Five Thousand) in each appeal to be paid by the proposed appellants to the respondent within six weeks from the date of this order.
In view of the above discussions, the application for condonation of delay in filing the applications for substitutions of LRs are allowed subject to payment of Rs.25,000/- (Rupees Twenty Five Thousand)in each appeals to be paid within six weeks of this order.
List the application for substitution for legal heirs for hearing on 25th February, 2020.