#delay Archives - Prime Legal

17 Aug

Section 5 Limitation Act| Court Must Not Discriminate Against Government Agencies, Government Has Special Obligation To Perform Duties: High Court of Delhi

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Title: Department of Health v. Kamla Mehndiratta and Ors.
Ordered on: 4th August, 2023

+ CM APPL. Nos. 20019/2019 and 20017/2019 in W.P.(C) 3613/2004 & CM APPL. 20068/2022 & CM APPL. 20069/2022

CORAM: HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

Introduction

The Delhi High Court recently declined to condone an inordinate delay of 691 days in an application seeking restoration of a petition filed by a government agency. The Court emphasized that government agencies, despite facing bureaucratic delays, must provide valid reasons for such delays. The case raised questions about the admissibility of the application given the substantial delay and the requirement for sufficient cause to condone delay under Section 5 of the Limitation Act.

Facts

The petitioner, a government agency, sought restoration of a petition that had been dismissed in default by the Labour Court. The petition had challenged an order of the Labour Court concerning the appointment and promotion of the respondent, who was initially appointed on a temporary basis and later worked as a regular staff member. The petitioner filed the restoration application after a delay of 691 days.

Analysis and Held

Justice Chandra Dhari Singh, a Single Judge Bench, underscored the significance of providing sufficient cause to condone delay under Section 5 of the Limitation Act. While acknowledging that government agencies may encounter procedural delays, the Court emphasized that unexplained delays of such magnitude could set a precedent for more similar applications.

The Court acknowledged the petitioner’s argument, which cited frequent changes in panel advocates and the resulting delay in restoration application filing. However, the Court expressed dissatisfaction with the petitioner’s failure to act in a timely manner despite ample resources at its disposal.

Justice Singh highlighted the special obligation of government agencies to perform duties diligently and committedly. Condonation of delay should be an exception and not a convenience for government departments. The Court emphasized that the phrase “sufficient cause” is pivotal in seeking extension of the prescribed period, requiring the petitioner to justify the delay convincingly.

In light of these considerations, the Delhi High Court held that the petitioner failed to satisfy the court that there existed a sufficient cause justifying the delay of 691 days in filing the application seeking restoration. Consequently, the Court declined to condone the delay and upheld the dismissal of the application for restoration.

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Written by- Ankit Kaushik

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8 Aug

The litigant should not suffer for want of necessary prayers for condonation of delay: Bombay HC

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Title: Praveen Otarmal Parmar v. M/s. Abhiroop Associates and Mr. Uday Raghunath Manerikar

Decided on: 7^th AUGUST 2023

+ CRIMINAL APPEAL NO. 1045 OF 2006

CORAM: S. M. MODAK, J.

Facts of the Case:

The Court of 11th Jt. Judicial Magistrate First Class, Pune acquitted the respondent for the offence punishable under Section 138 of Negotiable Instruments Act vide judgment dated 23rd March, 2006 in Case No.298 of 2003. The complaint was not filed in time and hence respondent was acquitted. It was the complainant who has preferred this Appeal.

The appellant had first sent a notice on 31^st Mar, 2006 and received no response from the firm or the partner. Notice was sent again on 16^th April and 21^st April to the firm and the partner respectively. Finally, he filed a complaint on 5^th June. The trial court held that there was a delay of 4 days (time period calculated from 31 March) and therefore, the accused were acquitted.

Issues

a) When the complainant filed the complaint on the basis of notice posted on second occasion, whether it was proper for the trial court to dismiss the complaint as time barred?
b) Whether trial Court ought to have given an opportunity to the complainant to explain delay occurred?

Contentions

The appellant claimed that when the process was issued and when case has proceeded it was not proper for the trial Court to dismiss the complaint. It was obligatory on the trial Court either to condone delay on its own or ought to have given an opportunity to offer an explanation. They explained that the notices sent were not registered and were returned to him for being not claimed, which is why he sent fresh claims in the month of April. Thus, he explained this to be the right date from which the period of limitation should be calculated and also that the complaint was filed on the basis of second notice.

The Respondents supported the order and submitted that there is no duty cast upon the trial Court to condone the delay particularly when the complainant has not prayed for condonation of delay. The Respondents presented evidence that the notices were returned with the mark “intimation delivered.”

Decision

The Court held that since the prosecution under Negotiable Instruments Act is quasi-civil. The notices came back with the mark “unclaimed” and thus, the appellant needs to be given an opportunity to pray for condonation of delay. The Court added that the litigant should not suffer for want of necessary prayers for condonation of delay. Hence, the appeal was allowed.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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28 Jul

Delhi High Court dismissed the review petition on the grounds of inordinate delay with no grounds for condonation.

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Title: MONIKA GUPTA Versus SANJAY BANSAL

Date of Decision: 19.07.2023

+ RFA(OS) 59/2019 & CM APPL. 19452/2022

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi High Court dismissed the review petition on as the petitioner was lackadaisical in filing the review and there is no ground of reason to back this Inordinate delay of more than 1600 days.

Facts of the case

The appellant filed the current application in an effort to excuse the existing appeal’s 1969-day filing delay. The petitioner has chosen the current internal court appeal in opposition to a decision made on August 27, 2014, known as “the impugned order,” the respondent’s claim for particular judgement was heard by the learned Single Judge, wherein It was mandated to perform. According to the contested order, the parties had signed a contract to sell a piece of land known as Plot. Number 68, 50.40 square metres, Pocket 11, Block G, Sector 11, ‘The suit property’ in Rohini, New Delhi-110085, is up for sale Consideration in the amount of Rs. 80 lakhs.

The plaintiff said that on May 7, 2012—the day the Agreement to Sell was signed—it had paid the appellant/defendant a payment totaling Rs. 50,00,000/- (Rupees Fifty Lakhs). At the time of the Sale Deed’s execution, the remaining amount of Rs. 30,00,000/- (Rupees Thirty Lakhs) was due to be paid on or by May 15, 2012. The learned Single Judge observed that the defendant/appellant had not filed a written statement and that it was not on record despite having had enough opportunity to do so. Additionally, the appellant did not show up in front of the relevant court on the dates when the case was heard.

As a result, the respondent/plaintiff’s request for particular execution of the Agreement to Sell dated 07.05.2012 was granted by the learned Single Judge, who also decreed the suit.

Analysis of the court

The appellant claims that the respondent failed to file the reply despite being given enough opportunity to do so, which contributed significantly to the delay in the processes surrounding the review petition.

The appellant supported his claim by citing the ruling in the case of DSR Steel (Private) Limited v. State of Rajasthan & Ors.: (2012) 6 SCC 782, which held that the time spent by the party pursuing the review petition must not be taken into account when considering whether to excuse the delay in filing the appeal. He called this Court’s attention to paragraph 25.3 of the aforementioned ruling.

The appellant receives no benefit from the aforementioned ruling. Contrarily, the Court has mandated that the time spent by the party actively pursuing the remedy of review be excluded in suitable situations. In this instance, we determine that the appellant pursued its review petition in a careless manner, and we are unable to believe that the appellant did so conscientiously.

It is obvious that the current appeal has been filed with excessive delay, and court finds no reason to excuse this.

As a result, the appeal is denied.

Written By Shreyanshu Gupta

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7 Jul

Delhi High Court Dismissed the appeal challenging the order of a district court due to lack of filing of written statement on time.

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Title: SANTOSH KUMAR AGGARWAL vs M/S ALUCO PANEL LIMITED

Date of Decision: 05th July, 2023

+ RFA(COMM) 131/2023

CORAM: HON’BLE MR. JUSTICE MANMOHAN

HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

Delhi High Court Dismissed the appeal challenging the order of a district court due to lack of filing of written statement on time thus defence for lack of territorial jurisdiction could not be raised.

Facts of the case

Present appeal has been filed challenging the order dated 11th November, 2022 passed by the learned District Judge in CS No.1235/2018 whereby the suit was decreed in favour of the respondent-plaintiff.

Analysis and Decision of the case

This Court determines that the appellant-defendant did not file the written statement or raise any defences despite participating throughout the suit processes, having heard the learned appellant’s counsel and having read the paper book. Despite the fact that an application under ruling IX Rule 7 CPC and an application under Order VII Rule 11 CPC were both submitted on October 17, 2019, both on the grounds that the Court lacked geographical jurisdiction, the applications were both rejected by a detailed ruling dated October 13, 2022. It is established law that a written statement cannot be filed more than 120 days after it is due. (See: 2019 SCC 210, SCG Contract (India) Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. As a result, the order dated 17th October, 2019 is in accordance with law.

Additionally, this Court believes that the defences of non-delivery of goods against bills nos. 10 and 30 and lack of jurisdiction in the current case are valid arguments. The Trial Court was unable to address the aforementioned defences since, in the current instance, the opportunity to provide a written statement had expired because it had not been submitted within the allotted time frame.

Additionally, this Court also believes that the decision interpreting Section 12A of the Commercial Courts Act prospectively renders the statute effective as of August 20, 2022. The aforementioned judgement offers no support to the appellant because the lawsuit in the current instance was filed in 2018.

As a result, the current appeal is dismissed together with any pending petitions since it lacks merit.

Written By – Shreyanshu Gupta

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2 Jun

Until the appellant gives the sufficient cause for condonation of delay under Section 5 of the Limitation Act, it cannot be condoned: Gujarat High Court

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State Of Gujarat vs Lajbarkhan Sherdalkhan Pathan on 12 April, 2023

Bench: Honourable Justice Sandeep N. Bhatt

R/SPECIAL CIVIL APPLICATION NO. 18903 of 2021

Facts

The respondent possessed a plot of land and his name was shown in the revenue record as a farmer. In the year 1989, the present petitioner – Government Authority came to the plaintiff’s place and issued notice for vacating the said land within seven days, without following any procedure, and removed some part of the hut. Therefore, the plaintiff filed a suit before the competent Civil Court for declaration and permanent injunction, along with an application for injunction. However, the Government Authority had chosen not to appear and contest the said suit. The trial Court therefore, allowed the suit ex-parte and granted permanent injunction and directed the Government Authority not to take possession of the land in question from the plaintiff, without following due process of law. There was no challenge by the State Authority against the same before any higher forum till date and hence the judgement attained finality

The respondent then filed another suit before the competent Civil Court to declare him the owner of the land in view of adverse possession as he was in its possession for the past 61 years as well as for permanent injunction. However, no appearance was made by the Government authority and therefore, the trial Court directed to hear the suit ex-parte. Ultimately, the trial Court passed the judgment in favour of the respondent and decreed the suit

After a delay of 3230 days, the State Authority then finally filed an application for condonation of delay and preferred an appeal against the judgment passed by the trial Court.

However, the Government Authority / Government Pleader failed to appear and therefore, the rights of the State were closed at each stage of the proceeding, after giving ample opportunity and thus the appellate Court rejected the application made by the Government authority for condonation of the delay. It is this order impugned, which is challenged by the State Authority before the present Court in the petition after about 9 years.

The counsel for the Government authority submitted that there was a revenue distribution of territorial jurisdiction of Ahmedabad which bifurcated it into 4 zones due to which an urgent requirement of establishment of authorities for all 4 zones had arisen. The bifurcation of the zones consumed some time and only then did the authorities have a chance for the demarcation of the revenue jurisdiction. Hence, in the process of establishment of the offices, the records, documents and all the other connected things were either shifted or were in process of being shifted which took considerable time.

He contended that the appellate Court below had not rightly appreciated the facts and circumstances of the case and the reasons given by the Government authority in the application for condonation of delay and that the delay should be considered liberally

Judgement

The Court after going through the case held that despite sufficient opportunities having been given, theState Authorities had not appeared before the trial Court which compelled it to hear the matter exparte. Even after the verdict, the Government authority failed to challenge it and thus it attained finality which shows the marked incompetence of the authority to act in a timely manner.

The Court held that all these facts signify that there are wilful latches and negligence on the part of the state authority and for these reasons, the present petition is devoid of merits and therefore, the Court dismissed it accordingly.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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