Kanpur Development Authority vs Jaina Properties and Finance Limited

Delay condonation Application along with an affidavit has been filed by the appellant defendant for condonation of delay in filing the First Appeal. as per stamp reporter note the appeal is delayed by 107 days.

Learned Counsel for the appellant submitted that original suit was decreed on 29.8.2008 and the copy of the judgment dated 29.8.2008 was obtained in the first week of September, 2008 and after obtaining the certified copy and other documents, one official of the appellant reported the matter to the Joint Secretary of Kanpur Development Authority for necessary action with regard to filing of appeal and the Joint Secretary wrote a letter to Secretary for filing of appeal and thereafter the entire papers were sent to the High Court counsel Sri M.C. Tripathi at Allahabad for preparation of First Appeal on 19.11.2008 , subsequently, counsel of the K.D.A. had informed that certain more relevant papers were required for filing as well as for preparation of the first appeal.

It is further submitted by learned Counsel for the appellant that before winter vacation the First Appeal was prepared but it could not be filed as certified copy of the judgment was lost from the original file and then the counsel instructed the appellant''s pairokar for obtaining another certified copy of the judgment which was made available to the counsel during winter vacation and subsequently the Secretary of the K.D.A was transferred, thereafter, again new process was adopted and only thereafter the present First Appeal was finally prepared and has been filed.

Learned Counsel for the respondent submitted that condonation of delay application is not supported with the affidavits of the concerned official or the counsel involved in causing delay as to why the papers did not move immediately. No sufficient cause has been explained for the delay so caused. It is submitted that the condonation of delay application cannot be treated as a cursory ritual and it is enjoined upon the appellant authority to rather explain the delay in filing the appeal, which is lacking. Appellant authority has taken a vague plea that the first certified copy of the judgment was lost. It is submitted that no date or name of officer is mentioned who was so careless that he lost such important documents, how and from where and whether any departmental enquiry was undertaken and if yes, by whom and its outcome. There is nothing on record to show that a second certified copy was availed. The explanation so made is without any dates and is not substantiated with any proof. Rather the application is drafted in most cursory and casual manner.

Learned Counsel for the respondent has relied on The Punjab and Haryana High Court in Raghunath Singh and Ors. v. Chander Krishan Mahajan and Anr. C.R. No. 3388 of 1990 decided on 24.3.1993) in which it has been held that the expiry of time arising due to negligence of a party cannot be said to be beyond the control of the party and will not be sufficient cause within the meaning of Section 5 of the Act. Further learned Counsel for the respondent has relied on the decision of Supreme Court in D. Gopinathan Pillai v. State of Kerala and Anr. 2007 (1) CCC180 (SC) in which it has been held that when a mandatory provision is not complied with and when the delay is not properly satisfactorily convincingly explained the Court cannot condone the delay, only on the sympathetic ground. In Pundlik Jalam Patil (D) by Lrs. v. Exe. Eng. Jalgaon Medicum Project and Anr. (1993) 1 SCC 572 , it is held that it is true when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of latitude but the law of limitation is same for citizen and for Governmental authorities. Limitation Act does not provide for a different period to the government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purpose with it. In P.K. Ramachandran Vs. State of Kerala and Another, it was held that Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious.

For the purposes of condonation of delay, there must, be some cause which can be termed as ''sufficient cause''. Condonation of delay cannot be allowed only because delay is unintentional and there are sufficient attending circumstances to bolster up the same. There must be some plausible and reasonable explanation. There should be some extenuating circumstances justifying condonation of delay or there must be some compelling reasons for the Court to condone the delay.

In the facts and circumstances stated and explained above, we do not find any genuine cause to condone the delay. Accordingly, the application for condonation of delay u/s 5 of Limitation Act is rejected and consequently the appeal is dismissed as time barred without imposing any cost.