Engineering Project (India) Ltd And 3 Ors vs M/S J A Brothers

Heard Mr. D.Barua, learned counsel appearing for the petitioner. Also heard Mr. A.K. Dasgupta, learned senior counsel appearing for the opposite

party.

This is an application u/s 5 of the Limitation Act, 1963, praying for condoning delay of 215 days. The respondent/opposite party filed a Title Suit being

T.S. No. 527/2018, in the Court of the Civil Judge No. 1 Kamrup (M), Guwahati, seeking various declarations, permanent injunction and alternatively

sought damages. A separate application under Order 39 Rule 1 and 2 of the CPC was also filed along with the suit. The respondent thereby prayed

for an injunction restraining the present appellant from holding any tender in respect of NIT No. DLI/CON/644/346 dated 14.09.2012 and/or Tender

Document No. Nero/con/664/339 dated 14.11.2018, NIT No. NERO/CON/664/337 dated 13.11.2018 and NIT No. NERO/CON/664/338 dated

14.11.2018 from setting and / or awarding the same contract or different and number to any third party contractor in any manner until disposal of the

main suit.

The present applicant, who is defendant in the suit pending before the Court below filed an application seeking return of the plaint filed by the present

respondent on the ground that it was only the Court at Delhi which has a jurisdiction to entertain any dispute pertaining to the contract between the

parties.

On 14.05.2019, the trial Court rejected the suit application filed by the present applicants holding that the personal clause of agreement cannot override

the statutory provision. Therefore, the present applicants filed the revision application before this Court.

In order to buttress his submissions, Mr. Baruah has relied upon Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012) 5 SCC 157 .

Paragraphs 14,15,16,17,18,23,24,25,26 of the said judgment are quoted--

We have considered the respective arguments/submissions and carefully scrutinised the record. The law of limitation is founded on public policy.

The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for

vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till

the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is

shown by the applicant for not availing the remedy within the prescribed period of limitation.

The expression “sufficient cause†used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to

apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the

applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that

substantive rights of the parties are not defeated merely because of delay.

In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court while interpreting Section 5 of the Limitation Act, laid down the following

proposition: (AIR pp. 363-64, para 7)

“7. In construing Section 5 (of the Limitation Act) it is relevant to bear in mind two important considerations. The first consideration is that the

expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding

between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of

limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-

heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the

court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in

that behalf should be exercised to advance substantial justice.â€​

In Collector (LA) v. Katiji [(1987) 2 SCC 107] this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09,

para 3)

“3. The legislature has conferred the power to condone delay by enacting Section 5 of the 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 meaningful manner which subserves the ends of justiceâ€"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 realised that:

(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 legalise injustice on technical grounds but because it is capable of

removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact

that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law

demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner.

There is no warrant for according a step-motherly treatment when the ‘State’ is the applicant praying for condonation of delay. In fact

experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be

subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its

part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community,

does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of

the interpretation of the expression ‘sufficient cause’. So also the same approach has to be evidenced in its application to matters at hand with

the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits.â€​

(emphasis in original)

In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] , the Court went a step further and made the following observations: (SCC pp. 127-

28, paras 9, 11 & 13)

“9. 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. Once the court accepts the explanation as sufficient, it is the result of positive exercise of

discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on

wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the

superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even

untrammelled by the conclusion of the lower court.

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. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. 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 oftime,

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 a legislatively fixed period of time.

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. While condoning the delay, the court should not forget the

opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite 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.â€​

What needs to be emphasised 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.

In cases involving the State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision-making

process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities

and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter

on the ground of bar of limitation will cause injury to the public interest.

In the light of the above, it is to be seen whether the explanation given by the respondent for condonation of more than 7 years and 3 months' delay

was satisfactory and whether the learned Single Judge of the High Court had correctly applied the principles laid down by this Court for the exercise

of power under Section 5 of the Limitation Act.

Per contra, Mr. Dasgupta relied upon three judgments of the Supreme Court. These are, Esha Bhattacharjee v. Raghunathpur Nafar Academy,

(2013) 12 SCC 649, Union of India v. Nripen Sarma, (2013) 4 SCC 57 and Amalendu Kumar Bera v. State of W.B., (2013) 4 SCC 52 :

In Esha Bhattacharjee(supra) it was held as under --

In Improvement Trust v. Ujagar Singh [(2010) 6 SCC 786 : (2010) 2 SCC (Civ) 798] it has been held that: (SCC p. 789, para 16)

“16. While considering [an] application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and

good grounds have been made out or not.â€​

It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves.

A reference to the principle stated in Balwant Singh v. Jagdish Singh [(2010) 8 SCC 685 : (2010) 3 SCC (Civ) 537] would be quite fruitful. In the

said case the Court referred to the pronouncements in Union of India v. Ram Charan [AIR 1964 SC 215] , P.K. Ramachandran v. State of Kerala

[(1997) 7 SCC 556] and Katari Suryanarayana v. Koppisetti Subba Rao [(2009) 11 SCC 183 : (2009) 4 SCC (Civ) 496] and stated thus: (Balwant

Singh case [(2010) 8 SCC 685 : (2010) 3 SCC (Civ) 537] , SCC p. 696, paras 25-26)

“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 (sic a lis). 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.â€​

From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the

courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause†should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these

terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken

note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are

required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted

whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so

as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle

cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the

other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law

of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is

founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

In Nripen Sarma (supra), an order of this Court was challenged. The Supreme Court held as under â€

The appeal filed by the Union of India was dismissed by the High Court because of an inordinate delay of 239 days. The Division Bench of the

High Court, while dismissing the appeal, has observed as under:

“We have gone through the contents of the petition. The delay occurred because the respondents took their own sweet time to reach the

conclusion whether the judgment should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take

such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we

do not see any merits in this petition.â€​

We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was

fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.

The appellant has preferred this appeal against the final judgment dated 10-9-2007 before this Court. This appeal is also barred by limitation of 114

days. There is no satisfactory explanation for condonation of delay before this Court also.

The Union of India ought to have been careful particularly in filing this civil appeal because the Division Bench, by the impugned order, has

dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India

are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases.

In Amalendu Kumar Bera,s case (supra), the Supreme Court held as under----

We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent State. There is no dispute that

the expression “sufficient cause†should be considered with pragmatism in justice oriented approach rather than the technical detection of

“sufficient cause†for explaining every day's delay. However, it is equally well settled that the courts albeit liberally considered the prayer for

condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch

whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice

perspective. In a recent decision in Union of India v. Nripen Sarma [(2013) 4 SCC 57 : AIR 2011 SC 1237] the matter came up against the order

passed by the High Court condoning the delay in filing the appeal by the appellant Union of India. The High Court refused to condone the delay on the

ground that the appellant Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High

Court also expressed its anguish and distress with the way the State conducts the cases regularly in filing the appeal after the same became

operational and barred by limitation.

I have given my anxious consideration to the submissions made by both sides.

The prayer under section 5 of the Limitation Act, for condonation of delay, has to be decided on the touchstone of “sufficient causeâ€. In

Improvement Trust, Ludhiana (supra) the Supreme Court has held --

It is pertinent to point out that unless maladies are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the

legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.

In State (NCT Of Delhi) vs Ahmed Jaan, reported in 2008 (14) SCC 562, the Hon, ble Supreme Court has explained the term sufficient cause

appearing in section 5 of the Limitation Act,1963 and held â€

The expression ""sufficient cause"" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of

sufficient cause for explaining every day's delay.

The true guide for a court for exercising the discretion under Section 5 of the Limitation Act is to see whether the appellant acted with an

unreasonable negligence. We must keep in mind that a litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is

not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

In O. P. Kathpalia v. Lakhmir Singh , reported in 1984 (4) SCC 66, a Bench of three Judges of the Supreme Court had held that if the refusal to

condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned.

In my considered opinion, in a prayer for condonation of delay under section 5 of the Limitation Act, it is the contesting opposite party, who has a

higher degree of burden to prove that the petitioner was prosecuting in a negligent manner and thereby the delay was caused. Here in this case it is

apparent that the delay was caused because of exchange of legal opinions between the applicants with their Delhi office. This Court is of the opinion

that the petitioners have shown sufficient cause for the delay and the opposite party has failed to prove that the petitioner acted negligently. Hence the

delay is accordingly condoned. The present petition is accordingly allowed and disposed of.