Dismissed

Ms Divyang Associates(P) Ltd. v. Hp.State Indu.Development Corpn.

Himachal Pradesh HC4 May 2017CMP.M/697/2016

Case brief

AI extract

What is this about?

This order dismisses applications seeking restoration of a civil appeal dismissed in default. The High Court rejects the explanation of inordinate delay due to alleged family discord and lack of instructions, finding the cause insufficient and the averments unproven without affidavit support.

What did the court decide?

Applications for restoration of the appeal and condonation of delay were dismissed for all the aforesaid reasons.

Ms Divyang Associates(P) Ltd. Vs… — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMP(M) No. 697 of 2016 and CMP No. 3509 of 2016

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OSA No. 13 of 2006

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Date of Decision : May 4 , 2017

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M/s Divyang Associates (P) Limited & another

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…Appellants/applicants

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Versus

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Himachal Pradesh State Industrial Development Corporation Limited & another …Respondents/non-applicants

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Coram:

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The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice, The Hon’ble Mr. Justice, Sandeep Sharma, Judge.

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Whether approved for reporting?¹ Yes.

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For the applicants : Mr. Bimal Gupta, Senior Advocate with Ms. Kusum Choudhary, Advocate, for the appellants/applicants.

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For the respondent : Mr. Dheeraj Vashisht, Advocate, for the respondent/non-applicant.

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Sanjay Karol, ACJ. (Oral)

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On 12.9.2006, Civil Suit No. 165 of 1992, so filed

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by the plaintiff – H.P. State Industrial Development

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Whether reporters of Local Papers may be allowed to see the judgment?

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Corporation (respondent No. 1 herein), came to be decreed against defendant D-1 (appellant No. 1 herein), defendant D-2 (proforma respondent No. 2 herein) and defendant D-3 (appellant No. 2 herein). With the passing of the impugned judgment and decree, plaintiff was held entitled to a sum of `33,57,528/- alongwith interest @13.5% p.a. with half yearly rests from the date of filing of the suit.

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Appeal assailing the same, so filed on 24.11.2006, by D-1 and D-3 impleading D-2 as proforma respondent was admitted on 27.2.2007. Subsequently on the request of the appellants it was adjourned on 16.3.2009 and 2.6.2009. On 22.7.2009, though none appeared for them, but was ordered to be listed before another Bench. However, on 23.9.2010, when again none appeared, it was dismissed in default.

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In terms of the present applications, so filed on 31.3.2016, under Sections 41 Rule 19 read with Section 151 CPC, D-1 and D-3 have prayed for restoration of the appeal and the delay in filing the same be condoned.

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Applicants, through the averments made in the applications, want the Court to believe that (a) M/s Divyang

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Associates (P) Limited (A-1/D-1) has two Directors i.e. Smt. Promila Pandeya (A-2/D-3) and her husband Pradeep Pandeya (proforma respondent No. R-2/D-2). Affairs of D-1 were being managed only by D-2; (b) for the reason that D- 2 was not available, D-3 filed the appeal on her behalf as also on behalf of D-1 by impleading D-2 as R-2; (c) acting on the assurances of D-2 that he would pursue the appeal, D-3 did not take any further steps, save and except of getting prepared an application for transposing D-2 as an appellant; (d) for the reason that both D-2 and D-3, since the year 2007 were having strained relationship, they permanently started residing separately and “stopped interfering in each other’s affairs”. In November, 2014, D-3 received summons from the Court of Additional District Judge, Gaziabad, in an execution petition, filed by the plaintiff. Hence, she immediately got in touch with D-2, who assured that he would “take care” and pursue the matter with the counsel in Shimla. Also that he would do all that was required to be done and she deed not worry; (e) on the basis of “arrangement” made by D-2, she “engaged a counsel in Ghaziabad and put appearance in the Execution Petition on

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27.3.2015”. Again she pursued the matter with D-2 who assured of taking all necessary action in the matter. Such interaction continued between both of them till November, 2015 when she realized that the assurances appeared to be false. Resultantly their sons visited Shimla on 27.12.2015 and on 11.1.2016 after visiting the office of learned counsel learnt about the dismissal of the appeal and were filing an application for restoration thereof. She was informed by the counsel assisting the original counsel that such application could be filed with the reopening of the court, after vacation, on 22.2.2016. Accordingly, she authorized her son to visit Shimla, who on 25.3.2016 got the application prepared and filed.

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Undisputedly, the delay in filing the application is more than five years and five months.

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Plaintiff vehemently opposes the application inter alia on the ground that (a) each day’s delay remains unexplained; (b) averments made are based on falsehood, for D-3 was already aware of the dismissal of the appeal as she had been vigorously pursuing her remedies before the executing Court.

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Let us first examine the relevant law on the issue

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of limitation.

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“Interest Reipubulicae Ut Sit Finis Litium”: The legal maxim means that it is for the general welfare that a period be put to litigation. If legal remedy is kept alive beyond the legislatively fixed period of time, it only generates dissatisfaction. The parties cannot be allowed to have an unbridled and unfettered free play in matters of timing of approaching the Court. The Courts must keep in mind, while dealing with the limitation petition, that there is a distinction between the delay for a plausible reason and delay because of inaction or negligence which deprives a party of the protection of Section 5 of the Limitation Act, 1963.

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In the case of NagendraNath v. Suresh, AIR 1932 Privy Council 165 and in General Accident Fire & Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 Privy Council 6, their Lordships and the Privy Council while dealing with the aspect of limitation specifically observed that "Limitation Act ought to receive such a construction as the language in its plain meaning

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imports. The rule must be enforced even at the risk of hardship to a particular party. The Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it.

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In Ramlal vs. Rewa Coalfields Ltd., AIR 1962 SC 361, the Supreme Court, while interpreting Section 5 of the Limitation Act, laid down the following proposition:

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"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 decreeholder 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 decreeholder 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.’’

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In Collector, Land Acquisition, Anantnag vs. Mst.. Katiji, (1987) SCC 107, the Supreme Court made a significant departure from the earlier judgments and observed:

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"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 meaningful 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:

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Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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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.

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"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.

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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.

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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.

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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. 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 notemaking, 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

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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."

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But however in the case of P.K. Ramchandran vs. State of Kerala & another, 1997 (4) RCR (Civil) 242 (SC): Judgments Today 1997 (8) SC 189, their Lordships of the Supreme Court while dealing with that matter answered that "Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the courts have no power to extend the period of limitation on equitable grounds."

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In N. Balakrishan vs. M. Krishnamurthy, (1998) 7 SCC 123, the Supreme Court expanded the scope and ambit of law of limitation and elucidated as follows:

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"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.

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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.

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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 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

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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.

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The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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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 latches on the part of the applicant, the court shall compensate the opposite party for his loss.”

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In Parimal Vs. Veena, AIR 2011 SC 1150 it was

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held:

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“The l egislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in

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utter disregard of the terms and conditions incorporated in the second proviso herein.”

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“9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, 1991(2) R.C.R.(Rent) 576 ; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, 2010(2) R.C.R.(Civil) 284 : 2010(2) R.A.J. 205 : (2010) 5 SCC 459)

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In Arjun Singh v. Mohindra Kumar &Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: BrijIndar Singh v. Lala Kanshi Ram & Ors., AIR 1917 PC 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953.)

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While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., 2000(2) S.C.T. 889 ; Madanlal v. Shyamlal, 2002(2) R.C.R.(Civil) 361 ; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. &Ors., 2002(1) R.C.R.(Civil) 555 ; Ram Nath Sao alias Ram Nath Sao &Ors. v. Gobardhan Sao &Ors., 2002(2) R.C.R.(Civil) 337 ; Kaushalya Devi v. Prem Chand &Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. &Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, 2008(3) R.C.R.(Civil) 62 : 2008(2) R.C.R.(Rent) 125 : 2008(3) R.A.J. 290).”

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In Basawaraj & Anr vs. Special Land Acquisition Officer, AIR 2014 SC 746 , the Supreme Court has gone on to state that equity is not a ground to extend the limitation period by condoning the delay if there is no “sufficient cause”. The reason assigned by the Supreme Court is that an unlimited period of litigation would have an impact of rendering a sense of insecurity and uncertainty, depriving a successful party of enjoying the fruits of litigation as finality to a judgment is postponed.

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In the instant case, we do not find the defence taken by the applicants (D-1 and D-3) to be plausible. Averments so made in the application do not appear to be

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true. It is not supported by an affidavit of either of the defendants. Sh. Divyang Pandya, son of the parties, who has sworn the affidavits, accompanying the applications, categorically does not state that the assurances met out to his mother were in his presence. What is the basis of his knowledge in verifying the contents, he does not disclose. Also when information came to be received by him, he does not state. However, we clarify that such fact has not at all weighed with us in adjudicating the merits of the present applications.

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Assuming hypothetically the contents of the application are correct, even then we find D-3 to have taken a mutually contradictory stand. It is not that she is a rustic villager or simpleton. At the time of filing of the original application she must have travelled to Shimla for engaging a counsel. Appeal came to be admitted on 27.2.2007. It is not her case that she was not informed by the learned counsel about such fact. Her averment of having strained relationship and living separately from her husband is not supported by any record, apart from the defence being vague and unspecific. On one hand she wants the court to

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believe that the instant appeal was to be pursued by her husband but then when it comes to pursuing the execution petition, she is doing it herself. It is not that appellant was not having access to any legal counsel or advise. For more than two years, prior to the filing of the instant application, she had been under constant legal advise. She knew it very well that a decree for money came to be passed against her as also the Company of which she was the Director. It is the duty of the litigant to follow the case with the lawyer and not the other way round. An advocate, in the absence of any instructions, cannot pursue the matter any further. Lack of instructions appears to be the only cause which led to the dismissal of the appeal. Her averments that she is living in penury with her father-in-law are not substantiated by any contemporaneous material. Between February and March, 2016 also no steps were taken.

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As such, we do not find the applicants to even prima facie having shown, much less proven, that they were prevented by any ‘sufficient cause’ from appearing when the appeal was called for hearing. In the instant case the

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delay is of more than five years and five months which in our considered view remains unexplained.

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Hence, for all the aforesaid reasons, both the applications are dismissed.

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(Sanjay Karol), Acting Chief Justice.

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(Sandeep Sharma), Judge. May 4 , 2017 (PK)

Ms Divyang Associates(P) Ltd. v. Hp.State Indu.Development Corpn.

Case brief

What is this about?

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Ms Divyang Associates(P) Ltd. v. Hp.State Indu.Development Corpn.

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