H. DOHIL CONSTRUCTIONS CO. (P) LTD. versus NAHAR EXPORTS LTD. & ANR.

11. No doubt sub-rule (1) of Rule 3-A has used the word "shall". It was contended that employment of the word "shall" would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the Appellant to rectify the mistake, either on his own or being pointed out by the court. The word "shall" H. OOHIL CONSTRUCTIONS CO. (P) LTD. v. NAHAR EXPORTS LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] in the context need be interpreted as an obligation cast on the Appellant. Why should a more restrictive interpretation be placed on the sub-rule? The Rule cannot be interpreted very harshly and make the non-compliance punitive to an Appellant. It can happen that due to some mistake or lapse an Appellant may omit to file the application (explaining the delay) along with the appeal."

12. Having regard to the said pronouncement of this Court with which we fully concur, the said submission also stands rejected.

13. It was then contended on behalf the Appellant(s) that the period of delay in filing the appeals, as well as a long delay of 1727 days in the refiling was not properly explained by the Appellant(s). It was pointed out to us that in the applications filed c in suppoq of condoning the delay in filing the appeals, as well as, in refiling the appeal papers there was virtually no explanation at all covering the period of delay. When we examined the said submission by making reference to the relevant applications filed on behalf of the Respondents in the applications filed for condoning delay of 9 days in filing the appeals, the stand of the Respondents was that after the judgment and decree dated 30.5.2007 the appeals were filed vide Diary Entry No.118619 on or about 06.09.2007, which was delayed by 9 days. The Respondents claimed that delay in filing the appeals came to its knowledge only when it received the objections in the paperbook refiled on 20.03.2012 and that immediately after it came to its knowledge the lower court files and records which were entrusted with the previous counsel which were found to have been dumped in a record room in Gurgaon were traced by contacting the said counsel and in that process the delay of 9 days in filing the appeals came to be ascertained. It was, therefore, contended that the said delay of 9 days in filing the appeals was unintentional and inadvertent ,_ and was not in the control of the Appellant(s). Except for the above averments stated in the applications dated 28.05.2012, A no other details were found in the said applications. The said applications were resisted by the Respondents.

14. In the applications filed for condoning the delay of 1727; days in refiling, it was stated that after the judgment was pronounced by the trial Court on 30.05.2007, the counsel was instructed to file an appeal, that the appeal was drafted and was sent to the Respondents for signature by the counsel, which was sent back to the counsel for filing and tliat the counsel informed about the filing of the af)peals on or about 06.09.2007 vide Diary No.118619. According to the Respondents, it was made C to believe that the appeals filed ori its behalf were tagged along with the RFA No.234 of 2008, filed by the Appellant(s) as against that part of the judgment which went against them.

15. The other contentions were that there was a change D of counsel towards the end of 2011 and that on 25.02.2012 all files were sent to the newly appointed counsel along with the papers relating to appeals of the Appellant(s) in RFA No.234 of 2008 and thereafter, the newly appointed counsel asked for the lower court files and on 29.02.2012 the pertinent files were E sent to the newly appointed counsel. Only thereafter, the Respondents came to know that the appeal papers were taken back after objections vide Diary No.118619. It was claimed that the Respondents were under the bona fide impression that its previous counsel filed the appeals in time and its appeals were F also tagged along with the appeals of the Respondents. It was also claimed that when the Respondents took up the matter with its previous counsel about the issue of delay in the refiling, no satisfactory reply was received, that the records handed over to the Respondents by its previous counsel was G incomplete and that it took sometime for it to collect the incomplete records and that is how the delay of 1727 days occurred in the matter of refiling which was unintentional and inadvertent. Based on the above averments, it was prayed that delay of 1727 days in refiling the appeals should be condoned.

16. The above applications were resisted by the H. DOHIL CONSTRUCTIONS CO. (P) LTD. v. NAHAR EXPORTS LTD. [FAKKIR MOHAMED IBRAHIM KALIFULl.A, J.] Appellant(s) by filing a detailed reply on 16.11.2013 pointing A out that the applications .filed in support of applications in condoning the delay of 9 days in filing, as well as 1727 days in refiling did not explain the enormous delay, that the claim of the Respondents that they were not aware of the return of the files for complying with the defects till 2012 was an incorrect B statement, that such an enormous delay in the refiling as well as delay of 9 days in filing was not supported by an affidavit of the concerned advocate, that the Appellant(s) when they filed their appeals as against that part of the judgment by which damages of Rs.3,00,000/- was directed to be paid to the c Respondents was complied with by depositing the amount into Court while filing the appeals, that since nothing was heard from the Respondents as regards the non-grant of specific performance by the trial Court for nearly five years, the Appellant(s) had made lot of improvements in their property 0 and, therefore, the condonation of delay in filing the appeals as well as refiling as had been ordered by the High Court would cause very serious prejudice to the Appellant(s). It was, therefore, contended that the order of the High Court was liable. to be interfered with.

17. Learned Senior Counsel appearing for the Appellant(s) also pointed out that while condoning such an enormous delay in refiling as well as delay of 9 days in filing the appeals, the High Court has not even stated that it was satisfied with the reasons adduced in support of the applications, apart from the fact that no reasons were stated for condoning the delay except imposing a cost of Rs.50,000/-. The learned Senior Counsel, therefore, contended that the approach of the Respondents in having moved the Court while filing the applications for condoning the delay in filing as well as refiling was a very casual G approach and there was no bona fide in their action and, therefore, the order of the High Court called for interference.

18. On the other hand Mr. Jayant Bhushan, learned Senior Counsel for the Respondents contended that the High Court having exercised its discretion while condoning the delay by imposing a heavy cost of Rs.50,000/-, this Court should not interfere with such a discretion exercised by the High Court. Learned Senior Counsel also contended that the delay was only 9 days in filing the appeals and that the delay involved in refiling should not be construed so very strictly and that since the Appellant(s) has filed its appeals as against the very same judgment of the tiial Court which is pending and the High Court having admitted the Respondents' appeals also and tagged it along with the Appellant(s)' appeals, by deciding the appeals c of both parties on merits, no prejudice is going to be caused to the Appellant(s).

19. Having considered the respective submissions, on this question, we find ttlat the submissions made on behalf of the Appellant(s) are forceful. It is true that the delay in filing the D appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is copdoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the concerned party or whomsoever was entrusted with the filing of the papers into the Registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the concerned party from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.

20. In the case on hand, the delay in refiling was 1727 days. G As rightly pointed out by the learned Senior Counsel for the Appellant(s), the Respondents paid the scrutiny charges on 11.04.2008 as disclosed in the Receipt No.73 issued by the High Court of that date. When the appeal papers were filed on 06.09.2007 and the scrutiny charges were paid on 11.04.2008, H. DOHIL CONSTRUCTIONS CO. (P) LTD. v. NAHAR EXPORTS LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the Respondents or its counsel between April 2008 and May 2012, it is th.e bounden duty of the Respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the Appellant{s), we find that there was no convincing explanation as to how the Respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The Respondents only.ettempted to throw c the blame on the previous counsel to whom appeal papers were entrusted for· filing in September 2007. As pointed out by the learned Senior Counsel for the Appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a matter of fact the appeal papers w!'lre filed without payment ·of any Court fee. This only affirms the stand of the : Appellant{s) that th.ere was no bona fide in the Respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non-grant of relief of specific performance. We also fail to see as to how the Respondent No.1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow-up action to ensure that its appeals were duly registered in the High Court. In this context the maxim Vigi/antibus Non Dormientibus Jura Subveniunt (Law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand: The Respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days delay involved in filing the appeals.

21. We express our total disinclination to countenance such a stand made on behalf of the Respondents. In this respect, the claim of the Appellant(s) that serious prejudice would be caused to the Appellant(s) merits acceptance. In the rejoinder filed by the Appellant(s) to the Respondents' counter, the B Appellant(s) has explained as to how they had to spend a huge amount to upkeep the property by approaching the authorities of the Delhi Municipal Corporation, the enormous amount spent to the tune of Rs.28,00,000/- by way of house tax from the year 2004 up to this date and various other improvements made in c the property during the period wherein the delay in the matter of filing of the appeals and refiling was ·made by the Respondents. Therefore, the principle that the law of limitation is based on sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay D should be strictly construed assumes significance. In this context a Division Bench pecision of the Madras High Court in Tamil Nadu Mercantile Bank, Ltd. (represented by its Chairman), Tuticorin vs. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madureyi and another reported in 1990 E (I) LLN 457 can be usefully referred to. Paragraphs 14 and 17 are relevant for our purpose, which read as under: "14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the concerned party may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the H. DOHIL CONSTRUCTIONS CO. (P) LTD. v. NAHAR EXPORTS LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. 17. . ……. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?"

22. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee (supra) where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principle Nos.(iv), (v), (viii), (ix) and (x) of paragraph 21 can be usefully referred to which read as under: "(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. (v) Lack of bona tides imputable to a party seeking condonation of delay is a significant and relevant fact. c [2014) 8 S.C.R. (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. (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 liberat approach. (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."

23. When we apply those principles to the case on hand, E it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper F details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along G with the appeal papers and the failure to furnish the details as to who was their 'counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal H papers within the time prescribed and by allowing the delay to H. DOHIL CONSTRUCTIONS CO. (P) LTD. v. NAHAR EXPORTS LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained 'without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of ~stice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results .in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the stiit for c specific performance and when the trial Court found that the claim for specific performance based 6n the agreement was correct but exercised its discretion not to grant th~ relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they ;should have shown -utmost diligence and come forward with justifiable reasons when . an enormous delay of five years was involved in getting its appeals registered: 24·. We, therefore, find total lack of bona-fides in its approach and the impugned order of the High Court in having ·condoned the delay in filing as well as refiling, of 9 days and 1727 days respectively, in a casual manner without giving any reason, much less acceptable reasons, cannot therefore be sus~ained. The appeals are allowed and the impugned order is set aside. Direction to admit the appeals of the Respondents in RFA Nos.268/2012, 269/2012, ?70/2012, 271~2012, 272/ 2012, 273/2012, 274/2012, 275/2012, 276/2012, 277/2012, 278/2012, 279/2012, 280/2012, 281/2012, 282/2012, 283/ 2012, 284i2012, 285/2012, '286/2012, 287/2012, 288/2012 and 319/2012 is also set aside and shall stand dismissed. No costs. Rajendra Prasad Appeals allowed.