CONDONATON OF DELAY IS NOT A MATTER OF RIGHT

[Mr. M. GOVINDARAJAN]

Limitation

Time limit is prescribed for filing suits/application/petition/appeal etc. before the appropriate authority.  For example any civil suit is to be filed within 3 years from the cause of action.  Section 107(1) of the Central Goods and Services Tax Act, 2017 provides that any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within 3 months from the date on which the said decision or order is communicated to such person.  The Government may also file appeal against the order of adjudicating authority within 6 months from the date of communication of Commissioner of GST directing to file appeal against the order of adjudicating Authority.  Thus time limit is prescribed for filing appeal either by the registered person or by the Department.

Section 107(4) of the Central Goods and Services Tax Act, 2017 provides that the Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 3 months or 6 months, as the case may be, allow it to be presented within a further period of 1 month. Thus, if the appeal is not filed within the limitation period then it may be allowed to file within 1 month from the end of the limitation period for filing appeal.  No delay beyond one month shall be condoned by the appellate authority.

Section 5 of the Limitation Act also provides that any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.  The explanation to this section provides that the fact that the appellant or the applicant was missed by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare.  Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

In ‘Halsbury’s Law of England’ (Fourth Edition, Vol. 28, Page 207) the author commented that the courts have expressed at least three differing reasons supporting the existence of statutes of limitations-

• that  long dormant claims have more of cruelty than justice in them,
• that a defendant might have lost the evidence to disprove a stale claim, and
• that persons with good causes of actions should pursue them with reasonable diligence.

Unlimited limitation

In POPAT AND KOTECHA PROPERTY VERSUS STATE BANK OF INDIA STAFF ASSOCIATION - 2005 (8) TMI 691 - SUPREME COURT, the Supreme Court held that an unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches.

Sufficient cause

In MADANLAL VERSUS SHYAMLAL - 2001 (11) TMI 1046 - SUPREME COURT, the Supreme Court held that the expression ‘sufficient cause’ should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible.

‘Sufficient cause’ means that the party should not have 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 it cannot be alleged that the party has not acted diligently or remained inactive.  In BASAWARAJ & ANOTHER VERSUS THE SPL. LAND ACQUISITION OFFICER - 2013 (12) TMI 274 - SUPREME COURT, the Supreme Court held that the applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.  The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.

In KRISHNA VERSUS CHATHAPPAN - 1889 (11) TMI 1 - MADRAS HIGH COURT , the Madras High Court held that the words ‘sufficient cause’ receiving a liberal construction so as to advance substantial

Justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.

Not matter of right

In RAMLAL, MOTILAL AND CHHOTELAL VERSUS REWA COALFIELDS LTD - 1961 (5) TMI 54 - SUPREME COURT, the Supreme Court held that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.

Even after sufficient cause has been shown a party may not be entitled to the condonation of delay 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. When sufficient cause is not established the application for condonation of 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.  The Court has to consider all relevant facts especially diligence of the parties or its bona fides. However, the scope of 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. The Court is not expected to enquire into why the party was sitting idle by all the time available to it.

In SATHY M.P. AND M.P. BABY VERSUS SARASA, BABY, AMBILY AND VIMALA - 2023 (11) TMI 670 - KERALA HIGH COURT , the petitioners seek to condone the delay of 288 days in filing review petitions challenging the common judgment CM Appeal No. 409/2015 and 410/2015.  The Review petitioners submitted the following before the High Court-

• The petitioners filed an application for certified copy of the judgment on 16.7.2014 itself.
• The certified copy was issued on 25.7.2014.
• Thereafter, the Registry required the appellants to surrender the certified copy of the judgment for some rectification and the petitioners surrendered the same.

• The petitioners obtained the judgment after three months from the date of surrender.
• The Power of attorney holder of the review petitioners is a chronic asthma patient and underwent continuous treatment.
• As the power of attorney holder was suffering from asthmatic complaints he could file the review petitions only on 31.5.2015.
• There were no laches or intentional default on the part of the power of attorney holder in filing the review petitions.

The respondents submitted the following before the High Court-

• The Regular Second Appeals and the Review Petitions have been filed at the instance of the Power of Attorney Holder, who is using the review petitioners as a tool against the respondents.
• For the delay is the difficulties caused to the power of attorney holder and not to the petitioners/review petitioners.
• The delay has not been properly explained.

The High Court heard the submissions of the parties.  The questions that arose for the consideration of the High Court are-

• Whether the petitioners have established sufficient cause for not preferring the review petitions within the statutory period?
• If sufficient cause is shown, have the petitioners established the ground for the exercise of the discretion in condoning the delay?

The High Court analyzed the provisions of Section 5 of the Limitation Act and various judgments of High Court and Supreme Court.  The High Court observed that the review petitions have been filed by the power of attorney holder of the petitioners.  No materials have been placed before the Court to show that the review petitioners had any inconvenience or difficulty in prosecuting the matter.  No materials have been produced to explain the delay of 288 days in preferring the review petitions.  Adequate and enough reasons have not been placed before the Court to condone the delay.  It is not in dispute that the review petitioners were well aware or conversant with the issues involved and the prescribed period of limitation for taking up the matter if they bona fide wanted.  The High Court held that the petitions lack merit and accordingly, the High Court dismissed the review petitions as barred by limitation.