Whether an appeal shall be barred by limitation if a party fails to obtain certified copy of judgment within limitation even if it is entitled to get free copy of judgment?

The import of Section 12 of the Limitation Act and its explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or order cannot be excluded before the application to obtain a copy is made. It cannot be said that the right to receive a free copy Under Section 420(3) of the Companies Act obviated the obligation on the Appellant to seek a certified copy through an application. 

The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3327 of 2020

Decided On: 22.10.2021

V. Nagarajan Vs. SKS Ispat and Power Ltd. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ.

Author: Dr. D.Y. Chandrachud, J.

 Citation: 2021 INSC 663,MANU/SC/0956/2021.

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Whether it is mandatory to file fresh Vakalatnama alongwith Memo of appeal if same Advocate is representing the appellant in appeal?

 It is, thus, now well-settled that any detect in signing the memorandum of appeal or any detect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such detect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such detect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the detect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office. {Para 15}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6701 of 2005.

Decided On: 10.11.2005

Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Ors.

Hon'ble Judges/Coram:

Ruma Pal, A.R. Lakshmanan and R.V. Raveendran, JJ.

Author: R.V. Raveendran, J.

Citation: 2006 (1) ARC 1 (SC), MANU/SC/2173/2005

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Supreme Court: Amicus curiae to be provided to the revisionist/appellant accused even if the absence of his counsel is deliberate.

That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ? {Para 4}

7. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.

22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.

23. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 546 of 2011 

Decided On: 24.02.2011

Md. Sukur Ali Vs. State of Assam

Hon'ble Judges/Coram:

Markandey Katju and Gyan Sudha Misra, JJ.

Citation: 2011 Cri L J 1960 (SC),  MANU/SC/0155/2011.

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Supreme Court: Matter should not be remanded to the lower court when sufficient material for deciding the case finally is already there before the appellate court.

In our view, there was neither any need and nor any occasion to remand the case to the Magistrate. In other words, we are of the view that there was enough material before the Appellate Court on the basis of which the appeal on merits could have been decided one way or the other instead of remanding the case to the Magistrate for deciding it afresh. {Para 17}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2103 of 2008

Decided On: 28.03.2019

Susanta Dey Vs. Babli Majumdar and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Author: Abhay Manohar Sapre, J.

Citation: AIR 2019 SC 1661,MANU/SC/0428/2019.

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What is the duty of appellate or revisional court if it is setting aside findings of facts recorded by trial court?

Learned counsel for the appellant submitted before us, and with justification, that the judgment and order of, the High Court does not disclose application of mind to the evidence on record, or to the findings recorded by the Trial Court, which were sought to be set aside by the impugned judgment and order. The finding of the High Court is as vague as it can be and it is not possible to cull out the reasons which persuaded the learned Judge to set aside the findings recorded by the Trial Court. We have earlier quoted the relevant part of the judgment which justifies the criticism of the learned counsel. It is well settled that the Appellate or Revisional Court while setting aside the findings recorded by the Court below must notice those findings, and if the Appellate or Revisional Court comes to the conclusion that the findings recorded by the Trial Court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the Trial Court are sought to be set aside by an Appellate or Revisional Court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the Trial Court, the party aggrieved is entitled to ask for setting aside of such a judgment.

{Para 11}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1059 of 2003 

Decided On: 26.08.2003

Deb Narayan Halder Vs. Anushree Halder

Hon'ble Judges/Coram:

N. Santosh Hegde and B.P. Singh, JJ.

Author: B.P. Singh, J.

Citation:  AIR 2003 SC 3174,MANU/SC/0629/2003.

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Whether the appellate or revisional court should reverse any finding on account of any irregularity in sanction for prosecution if accused has not raised objection in that respect in the trial court?

 Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as if the Accused can, after an unreasonable delay, raise an issue about the sanction; but if that Accused does so, the court may not decide that issue both at the appellate stage as well as for the purposes of stay of the proceedings. {Para 66}

67. In Central Bureau of Investigation v. V.K. Sehgal   MANU/SC/0650/1999 : (1999) 8 SCC 501 it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the Accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. It was held in paragraphs 10 and 11 of the Report as under:

A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an Accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court......

In a case where the Accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

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Bombay HC: Any deficiency in filing the appeal / application Can't Make Appeal/application Filed Within Prescribed Period Of Limitation To Be Labelled As Time Barred

We may observe that, in such circumstances, any deficiency in filing the appeal / application like failure to file physical documents, cannot make the appeal, which was registered on the online portal within the prescribed period of limitation, to be labelled and/or held to be barred by limitation. Once the appeal was filed (albeit under the Online method) within the prescribed limitation, any deficiency in the appeal certainly could be removed later on, as the law does not provide, that the proceeding be strictly filed sans deficiency, and only then, the proceedings would be held to be validly filed. If such proposition is to be recognized as the correct position, it would not only tantamount to a patent absurdity, but also would result in a gross injustice, prejudicially affecting the legitimate rights of persons to a legal remedy(access to justice). Thus, the parties would necessarily have an opportunity to remove the deficiencies, if any, which may prevail at the time of filing of the proceedings, after the proceedings are filed. It may be observed that procedural compliances can never defeat the substantive remedy/right to pursue any proceedings when filed within limitation. Thus, any procedural deficiency in the proceeding filed within the prescribed limitation cannot be labelled to be a proceeding filed beyond limitation. {Para 16}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 1632 OF 2024

Shri Yogesh Rajendra Mehra Vs  Principal Commissioner CGST &

Central Excise Raigad (appeal)

CORAM: G. S. KULKARNI &

FIRDOSH P. POONIWALLA, JJ.

ORAL JUDGMENT: (PER G. S. KULKARNI, J.)

DATED: 20th February, 2024

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What is the basic concept of legal right and how this concept is relevant to decide who is “person aggrieved” ?

 In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.
2012 (11) SCALE 39wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh Vs  Paramjit Singh 

Dated: January 07, 2013
Dipak Misra, J.
Citation: (2013) 9 SCC 261; 2013 KHC 4017.

Read full Judgment here: Click here

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Can a court pass disadvantageous order against the appellant's interest beyond their prayers and pleadings in an appeal?

 However, it appears that in the appeal filed by the Petitioner, the Appellate Authority has directed to evict the Appellant from the premises allotted to her. The direction to evict the Appellant from the premises allotted to her cannot be allowed to sustain for the simple reason that, in an appeal filed by the Petitioner, no disadvantageous order to his interest beyond the prayers and pleading in the appeal can be allowed. Therefore, this Court is of the opinion that the direction of the Competent Authority as confirmed by the Appellate Authority by the impugned judgment and order dated 15th November, 2011 to evict the Appellant from the premises allotted to her, deserves to be interfered with and the same is quashed and set aside. However, the rest of the impugned judgment and order dismissing the appeal.

16. However, if the Authorities feel it appropriate in accordance with the relevant provisions to initiate proceeding against the Petitioner to evict the Petitioner from the premises allotted to her for breach of Rules and Regulations, in that case, the Authorities would be free to initiate separate proceeding and merely because in this petition this Court has quashed and set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her, is no impediment to initiate such action. It is merely because no disadvantageous order can be passed in an appeal filed by the Petitioner beyond the prayers and pleadings, this Court has set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her. In light of the above, the writ petition is allowed to above extent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9149 of 2011

Decided On: 10.09.2013

 Vachalabai Haribhau Lingayat  Vs. Estate Manager, Aurangabad

Hon'ble Judges/Coram:

Sambhaji Shiwaji Shinde, J.

Citation: 2014(2) MHLJ 190,MANU/MH/1442/2013

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Bombay HC: 9% is the appropriate rate of interest to be awarded in motor accident compensation cases

  The Tribunal awarded an interest @ 6% p.a. from the date of application till its realization and I find substance in the submission of the learned counsel to the effect that the interest ought to have awarded @ 9% p.a., which is the appropriate rate of interest to be awarded in case of compensation to be payable for motor accidents and the Apex Court in case of Kaushnuma Begum & Ors. Vs. New India Assurance Co., MANU/SC/0002/2001 : 2001 (1) SCR 8, has observed that 9% is the appropriate rate of interest to be awarded in motor accident compensation cases. Perusal of the latest decision of the Apex Court in case of Parvinder Singh (supra), the compensation is awarded with interest @ 9%.

{Para 21}

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

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Whether claimant must prove percentage of loss of earning capacity, arising from a permanent disability in motor accident case?

 When a claimant suffers a disability as a result of such injuries and on ascertaining that the disability is of permanent nature, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. It is expected that the mechanical formulae of calculating the loss of earning capacity depending upon the percentage of permanent disability, is not to be applied as in most of the cases, the percentage of economic loss i.e. the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.

Accepting the aforesaid principle, it can be seen that as far as the respondent claimant is concerned, the disability certificate has certified his disability to be 83% and the Tribunal has accepted his functional disability to be 83% and therefore, the loss of earning capacity to be 83%. However, if the claim of the claimant is that on 83% disability, he has incurred 100% functional disability, then it was imperative for the claimant to bring on record some evidence to that effect. Since the claimant suffer 83% physical disability in the present case, in order to establish that this amounted to 100% functional disability, none of the witnesses are examined by the claimant to prove the said aspect. The claimant has not projected his case before the Tribunal to the effect that on account of the permanent disability incurred by him, his functional disability is also 100%, which has resulted in loss of 100% earning capacity. In absence of any such specific evidence being brought on record, the submission of learned Advocate Ms. Nandini Chittal to that effect, do not deserve any consideration. {Para 20}

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

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What are Special Damages and General Damages under which compensation is awarded in motor accident cases?

 The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on disability. account of permanent

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

Recording that in routine personal injury cases, compensation will be awarded only under Head 1, 2-A and 4, but in serious cases of injury where there is specific medical evidence, corroboration the evidence of the claimant, that compensation will be granted under the heads (ii)(b), (iii), (v) and (vi), relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

20. When a claimant suffers a disability as a result of such injuries and on ascertaining that the disability is of permanent nature, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. It is expected that the mechanical formulae of calculating the loss of earning capacity depending upon the percentage of permanent disability, is not to be applied as in most of the cases, the percentage of economic loss i.e. the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

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Whether the court can enhance compensation in motor accident case even if claimant has not filed cross-Appeal or cross-objection?

 The counsel for the claimant/respondent Ms. Nandini would submit that though the claimant has not filed any Appeal, against the inadequate amount of compensation awarded to him, though his claim was to the tune of Rs. 1,50,00,000/-, the compensation is awarded in the meager sum of Rs. 52,63,219/- and this require enhancement.

The said claim of the learned counsel is opposed by the counsel for the appellant but in the wake of the settled legal position, I do not have any hesitancy in accepting the submission of the learned counsel for the claimant that the Court on it's motion is also empowered to enhance the compensation, if it is found that the compensation awarded is not 'just' compensation. {Part 14}

15. The Motor Vehicles Act is a beneficial piece of legislation and provide for some solace to a victim, who meet with an accident or to the family of the victim who is a sufferer, when the bread-earner is disabled or succumb to the said accident. The duty of the Court in granting compensation to the victim or to his family, for its survival and meet the harness is to ensure 'just' compensation, irrespective of whether any plea in that behalf was raised by the claimant. The parameters of awarding compensation and the various heads under which the claimant is entitled for compensation are well determined by the Constitution Bench and the Apex Court in case of National Insurance Co. Ltd. Vs. Pranay Sethi MANU/SC/1366/2017 : 2017(16) SCC 680, and if the compensation is not accorded, in accordance with the legal settled position by the Tribunal, it is the duty of the Court to ensure just and fair compensation.

The learned counsel for the respondent has placed reliance upon the decision of this Court in case of United India Insurance Co. Ltd. and Ors. vs. Kunti Binod Pandey & ors., 2020 (1) BCR, 629, where a similar objection was raised in an Appeal filed by the Insurance Company, challenging the judgment and award of compensation by the MACT, holding that it is a statutory obligation of the Tribunal and the Court to do complete justice and award, 'just compensation', it has been held that by the learned Single Judge of this Court (Justice R.D. Dhanuka), that there can be no restriction to enhance compensation in appropriate case even in absence of cross-Appeal or cross-objection.

 IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022

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Bombay HC: Advocates Appointed By Legal Aid Or Court Exempt From Filing Certified Copies Of Judgement In Appeal

 The learned counsel Mr. Pawan Mali has strenuously preparedthe Appeal Memo along with the Application for condonation of delay.It appears that the office has not permitted him to file the Appeal and

Application, mentioning.doc rather has not accepted his papers on the ground that he has not furnished the certified copy of the impugned judgment. In fact the learned counsel was never given a certified copy of the said judgment by the Legal Aid Services Authority. {Para 3}

4. In view of this, the learned counsel Mr. Pawan Mali is exempted

from filing of the certified copy of the judgment and order in Sessions Case No.41 of 2016. Office to accept the papers and register the same as in other proceedings.

5. These directions would be applicable to all Advocates who are

appointed either by the Court or by the Legal Aid Services Authority.

Non-filing of the certified copy of the judgment shall not be an

impediment to accept the papers and register the Appeals by the

office.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2022

Babi Krushna Pawar  Vs The State of Maharashtra .

CORAM: SMT. SADHANA S. JADHAV &

MILIND N. JADHAV,J.

DATE MARCH 30, 2022.

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Does S 21 of the NIA Act exclude the application of S 4 to 24 of the Limitation Act for determining the limitation period for filing an appeal under the NIA Act?

  The point that arises for determination is, whether NIA Act, in particular Section 21 whereof expressly excludes the application of Sections 4 to 24 of the Limitation Act for determining the period of limitation for filing an appeal under NIA Act. One view is that by providing for condonation of delay after the expiry of 30 days‟ period prescribed for filing appeal, but not beyond 90 days from the date of judgment, sentence or order appealed from, the application of Section 5 of the Limitation Act is expressly excluded. The other view is that exclusion of Sections 4 to 24 must be express and not by necessary implication. We are, however, inclined to go by the later view. This is because Section 21 of the NIA Act has no where specifically excluded the application of Sections 4 to 24 (inclusive) for determining the period of limitation prescribed for filing appeal under Section 21 of the Act. There is, of course, similar provision in first proviso to Section 21(5) which gives discretion to the High Court to entertain an entertain an appeal after expiry of period of limitation of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within a period of 30 days. However, second proviso to Section 21(5) of the Act ordains that no appeal shall be entertained after the expiry of period of 90 days. {Para 19}

20 Having regard to the object of the NIA Act and the right of the accused to fair trial, the word “shall” used in second proviso to Section 21(5) of the Act deserves to be read as “may”, else the right of appeal given to the accused against his conviction would become a causality if the doors of the Appellate Court are shut to him on the ground of limitation. The right to fair trial is a right vested in the accused under Article 21 of the Constitution. The right of appeal, wherever it is provided, is a matter of substance and essentially a remedial right. If this remedy is put in jeopardy by creating bar of limitation and leaving no discretion in the Court to condone the delay even in well deserving cases, it would render the remedy otiose. We, therefore, cannot put any construction or interpretation on a provision that has the effect of taking away the fair trial right of the accused. It is in this context, we must hold that right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial. This is in this background, the Delhi High Court in the case of Farhan Sheikh vs. State (National Investigation Agency), 2019(7) AD (Delhi) 233, has taken the view that the word “shall” used in second proviso to Section 21(5) shall be read as “may” and that the second proviso is directory in nature. The Court further observed that the High Court shall have the discretion to condone the delay in appropriate cases even after expiry of period of 90 days. The Delhi High Court rightly did not agree to lift and apply decisions based on the interpretation of civil provisions, rendered in the context of civil and taxing statutes.

35 We have already held that the provisions of second proviso to sub-section 5 of Section 21 of the Act are directory in nature and, therefore, an application for condonation of delay under Section 5 of the Limitation Act is maintainable.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

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Whether Unfair trial can be cured by fair appeal?

 It is then urged by learned Counsel for the appellant that the provision of an appeal under Section 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on "Administrative Law" But as that learned author observes, "in principle there ought to be an observance of natural justice equally at both stages", and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.

And he makes reference to the observations of Megarry J. in Leary v. National Union of Vehicle Builders [1971] 1 Ch. 34. Treating with another aspect of the point, that learned Judge said :

If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.

The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall [1974] 42 D.L.R. (3d) 323. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practioners Disciplinary Committee [1974] 1 N.Z.L.R. 29 and so was the Court of Appeal of New Zealand in Reid v. Rowley [1977] 2 N.Z.L.R. 472.

{Para 17}

18. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. "Not all the King's horses and all the King's men" can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1911 and1912 of 1980

Decided On: 21.10.1986

 Institute of Chartered Accountants of India Vs. L.K. Ratna and Ors.

Hon'ble Judges/Coram:

R.S. Pathak and Sabyasachi Mukherjee, JJ.

Author: R.S. Pathak, J.

Citation: MANU/SC/0083/1986

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Whether Court Can Appoint An Arbitrator During The Pendency Of An Appeal Against An Award, Set Aside On Reasons Other Than Merit?

 In the present case it is not in dispute the award was not

passed on merits of the rival claims and therefore the decision in

Associated Constructions (supra) will come to the assistance of the applicant. The basis of the application is the fact that the award having been set aside and the Award not being on merits,

principles of Res Judicata cannot be attracted. It is also contended that under Order 41 Rule 5 of the Code of Civil Procedure, merely filing an appeal will not operate stay of further proceedings.

There is no prohibition against a new tribunal being appointed or the applicant being restrained in any manner from prosecuting this application. {Para 15}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

COMMERCIAL ARBITRATION APPLICATION NO.414 OF 2019

Wadhwa Group Holdlings Private Limited Vs Homi Pheroze Ghandy & Anr.

CORAM : A. K. MENON, J.

DATED : 7TH MARCH, 2022.

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Supreme Court reiterates that victim has absolute right of appeal against acquittal and it is not necessary for him to obtain special leave

It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court. {Para 22}

23. As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no. 2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no. 2 is therefore answered accordingly.

 In the Supreme Court of India

(Before M.R. Shah and Sanjiv Khanna, JJ.)

Joseph Stephen Vs Santhanasamy 

Criminal Appeal Nos. 90-93 of 2022

Decided on January 25, 2022

Citation: 2022 SCC OnLine SC 90

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Whether NCLAT Has Jurisdiction To Condone Delay Exceeding 15 Days From Period Of 30 Days?

As per Section 61(2) of the IB Code, the appeal was required to be preferred within a period of thirty days. Therefore, the limitation period prescribed to prefer an appeal was 30 days. However, as per the proviso to Section 61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 30 days if it is satisfied that there

was sufficient cause for not filing the appeal, but such period shall not exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code. Section 61(2) of the IB Code reads as under:

“Section 61(2) – Every appeal under sub-section (1) shall be filed within

thirty days before the National Company Law Appellate Tribunal:

Provided that the National Company Law Appellate Tribunal may allow an

appeal to be filed after the expiry of the said period of thirty days if it is

satisfied that there was sufficient cause for not filing the appeal, but such

period shall not exceed fifteen days.”

11. It is also required to be noted that even Shri Maninder Singh,

learned senior counsel appearing on behalf of the appellant has, as such, fairly conceded that considering Section 61(2) of the IB Code, the Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitation. However, has requested and prayed to condone the delay in exercise of powers under Article 142 of the Constitution of India, in the facts and circumstances of the case and submitted that the amount

involved is a very huge amount and that the appellant is a public body. We are afraid what cannot be done directly considering the statutory provisions cannot be permitted to be done indirectly, while exercising the powers under Article 142 of the Constitution of India.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6187 OF 2019

National Spot Exchange Limited  Vs  Mr. Anil Kohli, Resolution Professional for Dunar Foods Limited 

Author: M.R. SHAH, J.

Dated: September 14, 2021.

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Whether order passed in application for succession certificate can be challenged before district court or high court?

  In view of this position, the Civil Judge, Senior Division in these two Appeals have exercised the jurisdiction under Sub-section 1 of Section 388 of the said Act of 1925. In view of the proviso to Sub-section 2 of Section 388, the Appeals under Section 384 of the said Act of 1925 against the order of the learned Civil Judge, Senior Division will therefore lie to the District Judge and not to this Court. By virtue of the proviso to Sub-section 2 of Section 388 of the said Act of 1925 in case of all appealable orders passed on Application for succession certificate by the courts referred to Sub-section 1 of Section 388, the Appeal will lie to the District Judge irrespective of the value of the subject matter of the Application for grant of succession certificate. The reason being that the forum of Appeal is created by the proviso to Sub-section 2 of Section 388 of the said Act of 1925 and not by the provisions of said Act of 1869.{Para 9}

12. In my considered view, Appeals against the impugned judgments and orders will lie to the District Judge irrespective of value of subject matter of Application for succession certificate.

Bombay High Court

Shri Vitthal Ramchandra Mali vs Smt. Laxmi Ganpati Mali And Anr. on 6 June, 2006

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