Delay condonation -sub questions qua appeals and landmark old case and current position

  Delay condonation in appeals is governed mainly by Section 5 of the Limitation Act, 1963, under which an appeal may be admitted after the prescribed period if the appellant shows “sufficient cause” for not preferring it within time. The power is discretionary, applies to appeals and applications, and is not available as a matter of right.

Core position

The first sub-question is: what must the appellant show? The answer is that the appellant must disclose a credible, satisfactory, and bona fide explanation constituting “sufficient cause” for the delay.

Print Page

Supreme Court explains the difference in factors to be considered while deciding condonation of delay application either U/S 5 or U/S 14 of Limitation Act

Also, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the Appellant to have delay condoned. This was felicitously put in Ramlal v. Rewa Coalfields Ltd.,   MANU/SC/0042/1961 : (1962) 2 SCR 762 as follows: {Para 60}

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made Under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only Under Section 5 without reference to Section 14. (page 771).

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 995 of 2021.

Decided On: 19.03.2021

Government of Maharashtra (Water Resources Department) Vs. Borse Brothers Engineers & Contractors Pvt. Ltd.

Hon'ble Judges/Coram:

Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy, JJ.

Author: Rohinton Fali Nariman, J.

Citation: (2021)6 SCC 460,2021SCCONLINE SC 233, MANU/SC/0195/2021.

Read full Judgment here : Click here.

Print Page

To what extent provisions of S 5 of limitation Act are applicable to arbitration appeal under Commercial courts Act?

 Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed Under Section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or Section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches. {Para 61}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 995 of 2021.

Decided On: 19.03.2021

Government of Maharashtra (Water Resources Department) Vs. Borse Brothers Engineers & Contractors Pvt. Ltd.

Hon'ble Judges/Coram:

Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy, JJ.

Author: Rohinton Fali Nariman, J.

Citation: (2021)6 SCC 460,2021SCCONLINE SC 233, MANU/SC/0195/2021

Print Page

Supreme Court: Delay Occurred In Filing Criminal Appeal Against Acquittal Under S.378 CrPC Can Be Condoned Under Limitation Act

In the present case, there is no such exclusionary

provision under Section 378 of CrPC, or at any other

place in the Code. The benefit of Section 5 read with

Sections 2 and 3 of the Limitation Act, 1963 can therefore

be availed in an appeal against acquittal. There is no

force in the contentions raised by the appellants as

regards the non-application of Section 5 of the Limitation

Act in the present case and the appeal is therefore

dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(ARISING OUT OF SLP (CRL.) NO. 2052 OF 2017)

MOHD ABAAD ALI & ANR. Vs DIRECTORATE OF REVENUE PROSECUTION INTELLIGENCE

Author: SUDHANSHU DHULIA, J.

Citation:  2024 INSC 125.

Dated: February 20, 2024.

Print Page

Whether S 5 of limitation act is applicable to election petition filed under Maharashtra provincial Municipal Corporation Act?

 A combined reading of sections 16 and 403 and 404 leaves me in no manner of doubt that the Legislature with a view to protect and preserve purity of elections and democratic process has inserted the provision providing for election petition. The election process should be free and impartial is the anxiety. Further, merely because the election is over does not mean that the results thereof cannot be questioned or disputed. A person who has enrolled himself in the Municipal Election Roll can call in question the election itself or dispute qualifications of person who has contested and is elected. It is with this anxiety that in section 435, the Legislature has taken care to provide that in computing the period of limitation prescribed for an appeal or application referred in Chapter 26, the provisions of sections 5, 12 and 14 of the Limitation Act shall sofar as may be applied. The word “referred to” appearing in section 435(1) demonstrates that the intent was to make sections 5, 12 and 14 of the Limitation Act Applicable sofar as may be to the proceedings and enquiries contemplated in the Chapter. Even sections 434 and 436 are indicative of the Legislature Intent. In such circumstances, it is not proper to urge that section 5 of the Indian Limitation Act would not apply to the election petitions. Upon a plain reading of section 16 and sections 403 and 404 along with section 435 would make it clear that the Legislature did not exclude applicability of sections 5, 12 and 14 of the Limitation Act.{Para 16}

 Bombay High Court

(Before Dharmadhikari S.C., J.)

Yogesh Mangalsen Bahai Vs Rajesh Chimanrao Wable 

Writ Petition No. 8170 of 2007

Decided on January 10, 2008

Citation: 2008 SCC OnLine Bom 12 : (2008) 5 Bom CR 243

Print Page

Supreme Court: Commercial courts Act does not excludes application of S 5 of limitation Act

 The vexed question which faces us is whether, first and foremost,

the application of section 5 of the Limitation Act is excluded by the scheme of the Commercial Courts Act, as has been argued by Dr. George. The first important thing to note is that section 13(1A) of the Commercial Courts Act does not contain any provision akin to section 34(3) of the Arbitration Act. Section 13(1A) of the Commercial Courts Act only provides for a limitation period of 60 days from the date of the judgment or order appealed against, without further going into whether delay beyond this period can or cannot be condoned.{Para 33}

34. It may also be pointed out that though the object of expeditious disposal of appeals is laid down in section 14 of the Commercial Courts Act, the language of section 14 makes it clear that the period of six months spoken of is directory and not mandatory. By way of contrast, section 16 of the Commercial Courts Act read with the Schedule thereof and the amendment made to Order VIII Rule 1 of the CPC, would make it clear that the defendant in a suit is given 30 days to file a written statement, which period cannot be extended beyond 120 days from the date of service of the summons; and on expiry of the said period, the defendant forfeits the right to file the written statement and the court cannot allow the written statement to be taken on record. 

 Section 13(1A) of the Commercial Courts Act, by way of

contrast, applies an intermediate period of 60 days for filing an appeal, that is, a period that is halfway between 30 days and 90 days provided by Articles 116 and 117 of the Limitation Act.

41. For all these reasons we reject the argument made by Shri George that the application of section 5 of the Limitation Act is excluded given the scheme of Commercial Courts Act.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 995 OF 2021

GOVERNMENT OF MAHARASHTRA Vs M/S BORSE BROTHERS ENGINEERS & CONTRACTORS PVT. LTD

Author: R.F. Nariman, J.

Dated: March 19, 2021.

Print Page

Whether S 5 of limitation Act is applicable for condonation of delay in filing of cross objection?

I have given careful consideration to the submissions. The first issue is regarding the condonation of delay in filing the cross-objection. A Reference will have to be made to sub rule (1) of Rule 22 of Order XLI of the said Code which reads thus:

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

5. Thus, under sub-rule (1) of Rule 22 of Order XLI of the said Code, a power has been conferred upon the Appellate Court to extend the time to file cross-objection. The Appellate Court can grant such further time as it may see fit to allow. The sub-rule (1) of Rule 22 does not lay down that sufficient cause is required to be shown by the respondent. As the said Code vests the power to extend the time to file cross-objection in the Appellate Court, it is not at all necessary for the respondent in appeal to invoke section 5 of the Limitation Act, 1963. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 1323 of 2002 Alongwith Civil Application No. 2432 of 2011 and Cross Objection ST. No. 16210 of 2011

Decided On: 24.06.2011

 State of Maharashtra  Vs.  Kalu Ladku Mhatre

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka., J.

Citation: 2011(3) Civil court cases 796  Bom

Print Page

Whether court can condone delay in execution of decree as per S 5 of limitation Act?

It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.

It is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to.

An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the mater, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.

Supreme Court of India

Damodaran Pillai & Others vs South Indian Bank Ltd on 8 September, 2005

Print Page

Supreme Court: Power To Condone Delay Under Sec 5 Limitation Act Applies To Special Or Local Laws If It Is Not Expressly Excluded

Section 48(1) nowhere

expressly excludes the applicability of provisions of the Limitation Act.

The provisions of section 5 are applicable to Section 48 as they are not

expressly excluded by the provisions under the Act of 2005. More so,

in view of the provisions in section 45(4), which makes provisions to

condone the delay like the Limitation Act, conferring power upon an

authority also to condone delay. Further, suo motu revision has also

been provided under section 46. In section 48, there is no express

exclusion. Because of the scheme of the Act, it cannot be inferred that

by implication, the provisions of section 5 of the Limitation Act are

excluded. Provisions contained in section 29(2) of the Limitation Act

would be attracted as there is no express exclusion or by implication,

in view of the provisions of the Act of 2005. We hold that by virtue of

the provisions contained in section 29(2), provisions of section 5 of the

Limitation Act would apply to proceedings under Section 48 of the Act

of 2005.

22. The High Court has relied upon the decision of this Court in

Patel Brothers (supra) in the context of the Assam VAT Act in which

the abovementioned provision of section 84 made the difference, which

makes specific provision that only sections 4 and 12 of the Limitation

Act are applicable. Consequently, it follows that other provisions are

not applicable. The decision in Hongo India Private Limited (supra) also

turned on the scheme of the Excise Act. The scheme of the Excise Act

is materially different than that of the Himachal Pradesh VAT Act.

Thus, the decision in Hongo India Private Limited (supra) also cannot

be said to be applicable to interpret the Himachal Pradesh VAT Act. As

the revision under the Act of 2005 lies to the High Court, the

provisions of section 5 of the Limitation Act are applicable, and there

is no express exclusion of the provisions of section 5 and as per

section 29(2), unless a special law expressly excludes the provision,

sections 4 to 24 of the Limitation Act are applicable. When we consider

the scheme of the Himachal Pradesh VAT Act, 2005, it is apparent

that its scheme is not ousting the provisions of the Limitation Act from

its ken which makes principles of section 5 applicable even to an

authority in the matter of filing an appeal but for the said provision

the authority would not have the power to condone the delay. By

implication also, it is apparent that the provisions of Section 5 of the

Limitation Act have not been ousted; they have the play for condoning

the limitation under Section 48 of the Act of 2005. Suo motu provision

of revisional power is also provided to the Commissioner within 5

years. Thus, the intendment is not to exclude the Limitation Act. We

condone the delay in filing of revision.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 82768277

OF 2019

SUPERINTENDING ENGINEER/ DEHAR

POWER HOUSE CIRCLE BHAKRA BEAS

MANAGEMENT BOARD (PW) SLAPPER

Vs

EXCISE AND TAXATION OFFICER,

SUNDER NAGAR/ASSESSING AUTHORITY 

ARUN MISHRA, J.

Dated:October 25, 2019.

Print Page

Whether Time spent to set aside ex-parte decree is “sufficient cause” to condone delay in filing Appeal?

A conjoint reading of Order IX Rule 13 CPC and Section
96(2) CPC indicates that the defendant who suffered an ex-parte
decree has two remedies:- (i) either to file an application under
Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy
the court that summons were not duly served or those served, he
was prevented by “sufficient cause” from appearing in the court
when the suit was called for hearing; (ii) to file a regular appeal
from the original decree to the first appellate court and challenge
the ex-parte decree on merits.
11. It is to be pointed out that the scope of Order IX Rule 13
CPC and Section 96(2) CPC are entirely different. In an
application filed under Order IX Rule 13 CPC, the Court has to

see whether the summons were duly served or not or whether
the defendant was prevented by any “sufficient cause” from
appearing when the suit was called for hearing. If the Court is
satisfied that the defendant was not duly served or that he was
prevented for “sufficient cause”, the court may set aside the exparte
decree and restore the suit to its original position. In terms
of Section 96(2) CPC, the appeal lies from an original decree
passed ex-parte. In the regular appeal filed under Section 96(2)
CPC, the appellate court has wide jurisdiction to go into the
merits of the decree. The scope of enquiry under two provisions
is entirely different. Merely because the defendant pursued the
remedy under Order IX Rule 13 CPC, it does not prohibit the
defendant from filing the appeal if his application under Order IX
Rule 13 CPC is dismissed.
12. The right of appeal under Section 96(2) CPC is a statutory
right and the defendant cannot be deprived of the statutory right
of appeal merely on the ground that the application filed by him
under Order IX Rule 13 CPC has been dismissed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019


BHIVCHANDRA SHANKAR MORE  Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

Print Page

When court can restore execution application as per S 151 of CPC?

Under Order XXI Rule 105 of CPC, the Court is empowered to fix a date for hearing of the execution application. It further provides that if on the date fixed or on any date the hearing is adjourned, the applicant does not appear when the case is called for hearing, the Court may make an order that the application be dismissed. Order XXI Rule 106 of CPC provides that when an order is made under sub-rule 2 of Rule 105 Order XXI or sub-rule 3 of that Rule, such party against whom such order is passed may apply to such Court to set aside such an order and if he satisfies the Court that there was sufficient cause for his non-appearance, the Court shall set aside the order on such terms it thinks fit and shall place the matter on the day for further hearing of the application. Sub-rule 3 of Rule 106 of Order XXI further provides that an application under sub-rule 1 of Rule 106 of Order XXI shall be made within 30 days from the date of the order or in case an ex-parte order, if a notice was not duly served, within 30 days from the date when the applicant had knowledge of the order.

13. In my view, since the record clearly indicates that on the date of the said execution application, the Executing Court had not fixed the execution application for hearing under Order XXI Rule 105 of CPC, the said execution application has been dismissed on the ground that no steps were taken by the petitioner. In my view, the time of 30 days prescribed in sub-rule 3 of Rule 106 of Order XXI of CPC for making an application for setting aside the ex-parte order would not be attracted in such a situation. There would be thus no limitation prescribed for making an application for setting aside the order dismissing the execution application dismissed due to the steps not having been taken by the decree holder in the execution application. Such application shall be filed within reasonable period.

17. A perusal of the order passed by the learned Executing Court indicates that the learned Judge has rejected the said application for condonation of delay on the ground that section 5 of the Limitation Act was not applicable to the restoration proceedings under Order XXI Ruled 106 of CPC. In my view, since the provisions of Order XXI Rule 106 of CPC, were not attracted in this case, in view of the execution application itself not having been placed on board for hearing, reference to section 5 of the Limitation Act, 1963 in the impugned order shows perversity.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5896 and 5897 of 2015

Decided On: 15.10.2018

Botanium Limited  Vs. Babu Raghu and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 287

Print Page

Whether oral prayer for condonation of delay is maintainable?

It is well settled that an oral prayer for condonation of
delay can also be entertained provided ground therefor is made out
in the petition and accordingly I do not find any merit in the
submission that in absence of any formal prayer, the oral prayer
for condonation of delay cannot be entertained. However, as
rightly pointed out on behalf of the Executor, the court has to be
satisfied that there is sufficient cause for condoning such delay
and the court has to be satisfied with the explanations offered in

the petition. In an application for restoration, the applicant is
required to furnish reasons which have to be sufficient to sustain
a plea that the applicant is entitled to restoration of the matter
and he needs to offer an explanation for the period of delay.

IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
GA NO. 3070 OF 2018
PLA NO. 123 OF 2013

IN THE GOODS OF:
KRISHNA CHANDRA SENGUPTA (DECEASED)

BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 15th November 2018.
Citation: AIR 2019(NOC) 66 Cal

Print Page

Whether delay in filing application U/S 34 of Arbitration can be condoned taking recourse to S 14 of limitation Act?

 Section 14 of the Limitation Act is a hard task master and it should not be set into operation very lightly and in a routine manner. In Madhurao N. Patwardhan v. Ram Kishan MANU/SC/0113/1958 : AIR 1958 SC 767, it was held that the following conditions must be satisfied by the applicant for bringing its case within the four corners of Section 14 of the Act (supra): that he had been prosecuting the previous suit with due diligence and in good faith; that the matter in issue in the previous suit and the new suit are the same; that the Court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature. But, in the instant case, none of the above referred conditions have been fulfilled by the applicant by virtue of which the period which has been spent by it in prosecuting the litigation before the other Courts could be excluded. As such, by no stretch of imagination, it can be held that the Section 14 of the Act (supra) is (sic) applicable to the facts of the case.

9. Furthermore, now it is to be seen as to whether there is any scope to condone the delay for preferring the objections by the applicant. The controversy was set at rest by the Hon'ble Supreme Court of India in case Union of India v. M/s. Popular Construction Co. (supra), wherein it was held that the Court cannot condone delay in exercise of its discretion Under Section 5 of the Limitation Act in filing application Under Section 34 of the Act, 1996. Further, in case Senior Executive Engineer v. Minhas Builders MANU/PH/3766/2010 : (2010) 4 CCC 374 (P & H), it was held that where there is delay in filing objections to Arbitration Award then period of limitation cannot be extended even by invoking Section 5 of the Act.

IN THE SUPREME COURT OF INDIA

C.A. No. 5332 of 2017

Decided On: 07.04.2017

Haryana State Cooperative Labour and Construction Federation Ltd. 

Vs.

Unique Cooperative Labour and Construction Cooperative Society Ltd. and Ors.

Hon'ble Judges/Coram:

J.S. Khehar, C.J.I., Dr. D.Y. Chandrachud and Sanjay Kishan Kaul, JJ.

Citation: (2018) 14 SCC 248

Print Page

How to ascertain limitation for filing of appeal if decree is amended?

Having in view the several decisions it may be justifiable to propound that although the date of the decree under Order 20, Rule 7, Code of Civil Procedure, would be the date of the judgment, yet where a decree is substantially amended either by way of review or by way of the powers of corrections conferred on the Court under Sections 151, 152 or 153 of the Code of Civil Procedure, the party against whom such amendment or correction had been made ought not to be made to suffer merely on the basis of the wording of Order 20, Rule 7, Civil Procedure Code. If I may say so, the ratio decidendi of the above cases would be that if the decree is amended or corrected in respect of unsubstantial matters, a party may not get a right of appeal against such unsubstantial amendments or corrections. But, if it is substantially amended, the right of appeal would be from the date of such substantial amendment. Or, at any rate, if a party files an appeal against the amended decree, he can invoke Section 5 of the Limitation Act; and if his attack is against the amendment itself, there is no reason why the Court should be reluctant to extend time in his favour. At the most, the Court might not allow him to raise those questions which could have been raised if he had filed an appeal against the unamend-ed decree. But different considerations ought to prevail where the amendment is substantial.

In the present case, the amendment is undoubtedly substantial inasmuch as the unamended decree gave the first respondent a mere declaration in spite of a specific prayer about possession made in the plaint. The amended decree gives her possession as well. Therefore, I am of opinion that as laid down by the Division Bench of the Patna High Court in MANU/BH/0312/1929 : AIR 1930 Pat 142 (supra) and by the Division Bench of the Madras High Court in MANU/TN/0358/1944 : AIR 1945 Mad 62 (supra), the appellants' right to file an appeal against the decree for possession would be starting from the date of the amended decree.

IN THE HIGH COURT OF MADHYA PRADESH

Second Appeal No. 97 of 1962

Decided On: 13.10.1966

 Ram Singh Minor through Kashi Ram Vs.  Smt. Ramo Bai minor through Ram Baboo and Anr.

Hon'ble Judges/Coram:

P.K. Tare, J.

Citation: AIR 1968 Madhya Pradesh 220

Print Page

Whether S 5 of limitation Act is applicable to filing of execution application?

 Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. MANU/BH/0057/1976 : AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr. MANU/WB/0090/1976 : AIR1976Cal471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. MANU/WB/0035/1974 : AIR1974Cal173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.

21. In the result, we hold that the period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5005 of 1999

Decided On: 14.09.1999

West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming & Storage Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

K. Venkataswami and S.S.M. Quadri, JJ.

Citation: (1999) 8 SCC 315

Print Page

Whether court should condone delay if application is made by aggrieved person not party to proceeding?

 In our opinion, having regard to the facts and circumstances of the case and further keeping in view of the fact that the appellants were not made parties  to the original writ petitions and became aggrieved by the order passed by the writ Court (Single Judge) in the writ petitions, a case for condonation of delay in filing the appeals was made out. It was, in our view, a sufficient cause for condonation of delay within the meaning of Section 5 of the Limitation Act. The High Court ought to have, in these circumstances, condoned the delay and granted permission to file the appeals to the appellants for being heard on merits.

NON-REPORTABLE

Supreme Court of India

Hetal Chirag Patel vs The State Of Gujarat on 11 July, 2018

Bench: [ U Lalit], [ M Sapre]

Citation: (2018) 7 SCC 703

Print Page

SHORT NOTES ON LIMITATION ACT 1963 PART 1

S 2 Definitions:-

f) Easement includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of soil belonging to another or anything growing in or attached to,or subsisting upon the land of another;

h) Good faith- Nothing shall be deemed to be done in good faith which is not done with due care and attention;

m) Tort -It means a civil wrong which is not exclusively the breach of a contract or the breach of a trust;

S 3. Bar of limitation:-

Sub S 1- Every suit instituted,appeal preferred and application made after prescribed period shall be dismissed, although limitation has not been set up as defence.

Sub S 2- For the purposes of this Act:-

a) A suit is instituted

1) when plaint is presented to proper officer;

2) in the case of pauper, when his application for leave to sue as a pauper is made;

b) Any claim by way of a set off,or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted-

1) in the case of set off, on the date as the suit in which set off is pleaded;

2) in the case of counter claim, on the date on which counter claim is made in court;

Print Page

Basic principles to be followed by court for condonation of delay

   In  N.BALAKRISHNAN   VS   M.KRISHNAMURTHY
reported in (1998) 7 Supreme Court Cases 123 the Supreme
Court   has   held   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 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
untrammelleld by the conclusion of the lower court.   
10.    The Supreme  Court proceeds to observe that the
reason for such a different stance is that the primary function of
the court is to adjudicate the dispute between the parties and to
advance substantial justice. 
 The 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.  
11.   A court knows that refusal to condone delay would
result in foreclosing a suitor from putting his cause. There is no

presumption   that   delay   in   approaching   the   court   is   always
deliberate. The expression “suffiicient cause” should receive a
liberal construction so as to advance substantial justice. 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
sufficient to turn down his plea and to shut the door against
him.   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. 
12.   Having   considered   the   rival   contentions   and
perusing the material on record, delay can be condoned subject
to   payment   of   exemplary   costs.   An   Applicant   seeking
condonation   of   delay   has   to   state   the   true   and   factual
particulars.  The fact that the delay was only of 54 days, does
not dispense with the requirement stating the true and correct

facts.  If indeed Advocate Mr.Mukesh Sangani was engaged  to
only instuct Mr.Thakkar who was actually entrusted with the
matter, this fact should have been reflected in the Application
seeking condonation of delay.   Nevertheless, this is a fit case
where the explanation now submitted by Ms.Shivani Shah can
be   accepted.   This   is   because,   the   explanation   is   a   plausible
explanation.   Besides, it cannot be said that the Applicant has
gained substantially by omitting reference to Mr.Thakkar.
13.   Upon   taking   into   consideration   all   these
circumstances,   delay   can   be   condoned.     However,   the
Respondent will have to be suitably compensated because for
no fault of the Respondent it is the Respondent who shall suffer
real prejudice.  The Respondent has not only been deprived of
possession of the suit premises but, further there is bound to be
delay if the Appeal is to be heard on merits.  Almost two years
have  passed  since  the  Respondent  has  obtained  the  eviction
decree.  The prejudice is therefore required to be compensated
by costs.   For all this, the Petitioner, as condition precedent for
condonation   of   delay,   is   liable   to   pay   costs   quantified   at

Rs.1,00,000/­.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE  CIVIL JURISDICTION
CIVIL WRIT PETITION NO.2825 OF 2017
Dr.Ashok Rajmal Mehta  v M/s Shree Tirthankar Co  
CORAM :    M.S.SONAK, J        
DATE:        5th OCTOBER  2017

Print Page

How to ascertain limitation for filing counter claim?

Time to file the written statement is condonable. However, delay
in filing a counter claim cannot be condoned when the claim is barred by
limitation. However the period of limitation starts running from the date
of accrual of the right to sue. An application under Section 19 of the
DRT Act for recovery of a claim has to be filed within the period of
limitation for a suit to recover the debt. When an application is filed
under Section 19, the respondent/defendant might file its written
statement contesting the claim. The respondent/defendant may claim a
set of. The respondent/defendant may also raise a counter claim. This
counter claim need not be raised in the written statement itself. It may be
filed separately, but within the period of limitation.
22. The provisions of the Limitation Act would apply to the filing of a 
counter claim. A counter claim would have to be filed within three years
from the date of accrual of the right to sue. Reference may be made to
the judgment of the Supreme Court in Mahendra Kumar & Anr. Vs. State
of Madhya Pradesh reported in (1987) 3 SCC 265. Acknowledgment
within the period of limitation with promise to pay would extend the
period of limitation.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7 th December, 2016
 W.P.(C). 603/2016 

VISHAL HIRA MERCHANT PVT. LTD.V HDFC Bank 

CORAM:
 MS. JUSTICE INDIRA BANERJEE
 MR. JUSTICE V. KAMESWAR RAO.
Citation: AIR 2017 Delhi 49

Print Page

When application for condonation of delay is tenable in proceeding under Special Acts?

As held by the Hon'ble Supreme Court in
case of Mukri Goplanan V. Cheppilat
Puthanpurayil Aboobacker, reported in
(1995) 5 SCC 5 in paragraph no.15 (placetum d&
e) “.. it is not necessary to expressly state
in a special law that the provisions
contained in Section 5 of the Limitation Act

shall apply to the determination of
periods under it.” “An express mention in
the special law is necessary only for an
exclusion”.
(iv) The legislature while enacting the
Limitation Act, 1963 made several changes to
the provisions of the old Limitation Act,
1908 (as amended in 1922). One of the
change being that the scope of Section 5 was
made wider. The statement of objects and
reasons of the Limitation Act, 1963 state:
“Instead of leaving it to the different
States or High Courts to extend the
application of Section 5 to the
applications other than those enumerated in
that section as now in force, this clause
provides for the automatic application of this
Section to all applications, other than those
arising under Order 21 of the Code of Civil
Procedure, 1908, relating to execution of
decrees. In case of special or local laws,
it will be open to such laws to provide that
Section 5 will not apply.”
(Refer Para. 10 of (1974) 2 SCC 133
Humkumdev Narain Yadav Vs. Lalit Narain
Mishra)
Thus, Limitation Act, 1963 by virtue of
Section 29(2) seeks to automatically apply
provisions of Limitation Act to special or
local law and it is open for such laws to
provide that Section 5 will not apply. Hence,
it is submitted that exclusion of provisions
of Section 5 must be expressly provided by

the special or local law.
(v) Considering from another angle, it is
submitted that one cannot lose sight of the
fact the legislature while enacting the
Railway Claims Tribunal Act, 1987 was
obviously conscious of the provisions of
Section 29(2) of the Limitation Act, 1963
and therefore, it was not necessary for
legislature to expressly mention in the RCT
Act, 1987 that provisions of Limitation Act,
1963 would be applicable to appeals u/s. 23
before Hon'ble High Court.
(vi) If legislature wanted to exclude
applicability of Limitation Act, 1963
nothing prevented it from putting an express
provisions to that effect.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 12844 of
2015
In
FIRST APPEAL (STAMP NUMBER) NO. 2264 of 2015
TO
CIVIL APPLICATION NO. 12864 of 2015
 In
FIRST APPEAL (STAMP NUMBER) NO. 2284 of 2015

UNION OF INDIA.
V
GUJARAT STATE ELECTRICITY CORPORATION LIMITED 
CORAM:  MR.JUSTICE S.R.BRAHMBHATT
and
 MR.JUSTICE A.G.URAIZEE
Date : 21/10/2016

Print Page