Delays in filing matters may be condoned: CORRECTNESS OF EXPLANATIONS IS MORE IMPORTANT THAN THE DURATION

                                                                                                                   ------ By Advocate Gaurav Raj 

“Condonation of Delay” as the name suggests is a pardon plea. It is an application drafted to condone the delay in filing any Petition/ Complaint/ Written Statement/Appeal etc. before the relevant Court(s)/ Tribunal(s)/ Authorities as per the statutory obligation cast by the different Acts passed by the legislature.

Length of delay is no matter, acceptability of the explanation is the only criterion.

 

In the recent past , the Honourable  Supreme Court  in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 , while dealing with an issue involving delay of  2449 days had referred  various precedents on condonation of delay and  cumulatively laid down

 

 “17 Guidelines on condonation of delay ” .

 

1.  There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

2.  The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

3.Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

4.  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.

5.  Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

6.  It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

7.  The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

8.  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.

9.  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 liberal approach.

10.             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.

11.             It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

12.             The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

13.             The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

14.             An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

15.             An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

16.             Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

17.             The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

Government of India vs M/s Borse Brothers Engineers & Contractors Pvt Ltd (“Borse”) 

The Honourable Supreme Court of India clarified three significant issues raised in Borse. The three significant issues or questions of law raised are as follows:

1.  Whether Section 5 of the Limitation Act, 1963 applies to Section 37 of the Arbitration and Conciliation Act, 1996?

2.  Whether the period of limitation as prescribed under Section 13 of the Commercial Courts Act 2015 applies to Section 37 of the Arbitration and Conciliation Act, 1996?

3.  Can a delay in filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 be condoned or not?

In Ramlal v. Rewa coalfields, it was held that condonation of delay is not a matter of right, it’s a discretion and can only be granted if the court wishes to or realises that if not granted will cause a great amount of injustice to the party concerned. 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 the delay condoned. It was finally held that cases under the arbitration act and commercial courts act will get condonation beyond 90, 30 or 60 as a matter of exception (sufficient cause needs to be proved) and not as a matter of right.

The court went ahead to dismiss the single leave petition filed by the Maharashtra Government as lacking “sufficient cause” and was found that it was not bona fide. The government had delayed for 131 days for which a suitable explanation was not given and thus it was dismissed.

The condonation of delay has been very different in many countries, like for example United states has a limitation of 3 months within which one has to appeal (section 12, Federal Arbitration Act), however, the law doesn’t talk about condonation, similarly, United kingdom has an appeal period of 28 days( section 70(3) Arbitration Act, 1996 within which one has to file an appeal but without any delays, Singapore also has an appeal period of 28 days ( section 50 Arbitration act)  after which appeal is not allowed.

Institutional arbitration is very common and they usually do not have an appeal clause within them, for example, UNCITRAL rules don’t have an appeal provision, ICC also doesn’t provide an appeal provision but the ICC court must review the award before it is passed and it may recommend modifications, LCIA also lacks an appeal clause as in it doesn’t allow appeals, ICDR rules also don’t provide for an appeal.

In Parimal vs Veena @ Bharti, the Supreme Court of India explained Sufficient Cause as an expression which has been used in large number of Statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously

Rules of limitation are not meant to destroy or foreclose the rights of the parties. It is always fair and appropriate that matters be heard on merits rather than shutting the doors of justice at the threshold. The main purpose for which Section 5 of the Limitation Act, 1963 was enacted is to enable the Court to do substantial justice and that is the precise reason why very elastic expression sufficient cause is employed therein, so as to sub-serve the ends of justice   Section 5 Expression sufficient cause employed therein  is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice No hard and fast rule can be laid down in dealing with the applications for condonation of delay. See. Oriental Aroma Chemical Industries Ltd. Vs Gujarat Industrial Development Corporation and another – 2010 (2) SCJ 973 ( D.B. ). 

1.  Agolapu Raju Vs Agolapu Gangaram – 2016 (3) ALT 429. 

Section 5 of the Limitation Act, 1963, expression ‘sufficient cause’ must receive a liberal construction so as to advance substantial justice, as was held in State of Karnataka Vs Y. Moideen Kunhi (dead) by Lrs. and others – 2009 (5) SCJ 606 (D.B.).  For condonation of delay, sufficient cause be shown Court must not be pedantic in deciding delay condonation petition It should not be dismissed on the mere ground of long delay if the explanation offered is bona fide.

 

“While dealing with Section 5 of Limitation Act, the apex Court in S. Ganeshraju (dead) through LRs. v. Narasamma (Dead) through LRs., (2013) 11 SCC 341, held as under:”

“The expression “sufficient cause” as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the Court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has titled more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.

2.  In the present case. See. Majji Somulu @ Swamynaidu Vs Majji Nagaraju @ Nagesh & Ors, 2015 (6) ALT 301.  In Vardhineedi Narasimha Rao Vs Gadiraju Bapiraju – 2015

 “11. On a careful consideration of the provisions of Section 5 of the Act and the reasoning given by the learned Judge in N.V. Chowdhary's case (supra), I respectfully differ with the said view. I therefore reject the submission of the learned Counsel for the petitioner that Section 5 of the Act does not apply to the revision/review petitions filed in cases arising out of applications filed under Order XXI.”

 

3.  Ummer Vs Pottengal Subida and others – 2018 (3) ALT (SC) 11 ( D.B. ).

 

Earlier view of day-to-day explanation:-  One cannot now dispute the legal proposition that the earlier view of the Apex Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of the Hon’ble Supreme  Court and is, therefore, held as no longer good law.  Observing the same, it was held that cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for Condonation of delay of 554 days in filing the appeal deserves to be condoned Appeals succeed and are accordingly allowed Impugned order is set aside. See: Ummer Vs Pottengal Subida and others – 2018 (3) ALT (SC) 11 ( D.B. ).

 

4.  In 2019, in M.S. Naudine Pharma, rep. by its Partner and another Vs M/s. Med Manor Organics Pvt. Ltd., rep. by its Director – 2019 (2) ALT 270,

 It was held that the need to explain every days delay is no longer necessary. The length of the delay is not the criteria but the correctness of the reasons or the explanation for the delay is the important factor As per the settled law on this subject, sufficient cause has to be liberally interpreted provided negligence, inaction, lack of bona fides etc., are not made out. The purpose of the Courts are established to render justice. There is no hard and fast rule for condoning the delay and each case should be dealt with on its own merits.