AI Structured Summary
Not yet generated for this judgment
Judgment
P.K. Bhasin, J
I.A. No. 634 of 2017:
This is an application for condonation of delay 266 days in the filing of this appeal by the appellant Bank against the order dated 26.10.2016 passed by the learned Tribunal below (DRT) in Appeal No. 32/2016 which was filed by the appellant Bank against the order dated 13.4.2016 passed by the learned Recovery Officer allowing the objections filed by respondents 4 and 5 herein under Rule 11 of the Rules framed under Second Schedule to the Income Tax Act and setting aside the sale proclamation issued by him for the auction sale of property No. 11/77, Punjabi Bagh, New Delhi (hereinafter to be referred to as the property in dispute') in execution of recovery certificate issued by the DRT on 23.8.2006 in the appellant Bank's O.A. No. 333/1995 for recovery of Rs. 1,19,79,296/- from respondents (CDs) 1 to 3 herein.
The relevant averments made in this delay condonation application are as under:
"2. That by impugned order dated 26.10.2016, the Tribunal below has upheld the order of Recovery Officer by which the objections of the objector i.e. respondent Nos. 4 and 5 were allowed and it was held that the property in question was not validly mortgaged.
That admittedly, the original title documents of the property in question are still lying deposited with the appellant Bank having been deposited by respondent No. 1 as security for repayment of loan. Neither, respondent No. 1 nor anybody claiming under them have disputed the creation of mortgage or question the deposit of title deed with the appellant Bank till the objectors filed the objections before the Recovery Officer against notice for settling issued by the Recovery Officer in the recovery proceedings.
That the impugned order passed by the Tribunal below was received by the appellant as free-copy. The Branch Office which is under the control of law and recovery department, had sent the order to the concerned Department for further advice and necessary instructions. It appears that the relevant papers had got mixed up with another file and consequently the instructions/advice remained pending at the controlling office.
That in the meantime, the objectors filed a Misc. Application being M.A. No. 39 of 2017 seeking directions to hand over the original title documents to the objectors i.e. respondent Nos. 4 and 5. Pursuant to issuance of notice on the said Misc. Application, the appellant Bank realized that the Appeal against the order dated 26.10.2016 had not been filed. The file was accordingly reconstructed and moved for obtaining necessary advice/permission to appeal against the order dated 26.10.2016.
That the appellant contested the above Misc. Application without filing any formal reply, however, the Tribunal below passed a subsequent order on 27.6.2017 directing the appellant to return the original documents to the objectors against their furnishing security for a sum of Rs. 5 lacs, while observing that the appellant has not filed any Appeal against the order dated 26.10.2016. The appellant has filed a separate Appeal against the said order dated 27.6.2017.
That for the bona fide administrative reason stated hereinabove, there has been a delay of about 266 days in filing Appeal against the order dated 26.10.2016, though the Appeal against the subsequent orders dated 27.6.2017 has been filed in time. The delay so caused in filing the Appeal was for bona fide inadvertent reason and there has been neither intentional nor deliberate delay in filing the Appeal.
That the present Application is file bona fide and in the interest of justice."
This application has been opposed by respondent Nos. 4 and 5 who only are now the real contesting parties in this appeal. It has been opposed on the ground that the aforesaid averments made by the Bank show gross negligence on the part of the Bank officials and do not constitute sufficient cause for condonation of delay in the facts and circumstances of the case.
Normally the delay in filing of appeals either by Government or Instrumentalities of State or by private litigants is liberally condoned when delay cannot be said to be intentional and no mala fides can be attributed to the litigants seeking condonation of delay. Undisputedly the delay of 266 days in filing the present appeal is huge but certainly it cannot be said that, that much delay cannot be condoned at all under any circumstances, as was the submission of the learned Counsel for the contesting respondent Nos. 4 and 5/objectors.
Way back in the year 1987 the Hon'ble Supreme Court had while dealing Section 5 of the Limitation Act observed in a judgment rendered by it and which is 1987 (SLT Soft) 185 : AIR 1987 SC 1353 : 1987 SCR (2) 387, Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., that:
"The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaning-full manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
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.
"Every clay'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.
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.
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.
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."
(Emphasis laid)
Then in N. Balakrishnan v. M. Krishnamurthy, VII (1998) SLT 334 : AIR 1998 SC 3222 the Hon'ble Supreme Court observed as under:
"...........Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.
The reason for such a different stance is thus: The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly...........
A Court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor.......While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. "(The delay in this case was condoned by the Apex Court subject to payment of cost of Rs. 10,000/-)
(Emphasis laid)
These views continue to be reiterated in subsequent judgments also by the Apex Court. In Perumon Bhagvathy Devaswom v. Bhargavi Amma (D) Thr. L.Rs., IV (2008) SLT 647 : (2008) 8 SCC 321, the Apex Court had observed as under while dealing with the question as to what constitutes "sufficient cause" for the purpose of Section 5 of Limitation Act:
"6. What should be the approach of Courts while considering applications under Section 5 of Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer to two of them. In Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575, this Court reiterated the following classic statement from Krishna v. Chathappan, 1890 ILR 13 Mad 269:
"... Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."
In N. Balakrishnan v. M. Krishnamurthy (supra), this Court held:
"It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.............."
The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice........Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.
It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation."
(Emphasis supplied)
In Ram Nath Sao v. Gobardhan Sao, II (2002) SLT 240 : III (2002) CLT 244 (SC) : 2002(3) SCC 195, this Court observed thus:
"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a strait-jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party.........."
8...........(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 Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant."
(Emphasis supplied by me)
Keeping these views and observations of the Hon'ble Supreme Court in mind it is now to be seen whether in the present case the appellant Bank has been able to show that it had 'sufficient cause' in not preferring the present appeal within the prescribed period of appeal.
In my view, in the facts and circumstances, though some amount of negligence can be attributed to the Bank official concerned but there are no circumstances from which any mala fides can be inferred in causing delay in filing of the appeal. The Bank is fighting to recover huge amount of public money and, therefore, it could not afford to file the appeal belatedly. If that be so, this application deserves to be allowed and it is accordingly allowed. The delay in filing of the appeal is condoned but subject to payment of Rs. 1 lakh by the appellant Bank to the respondent Nos. 4 and 5 who alone have contested this application.
The appeal shall now be taken up for payment of cost by the appellant Bank to the respondent Nos. 4 and 5 on 1.1.2019.