9911796707
TMI Blog2013 (6) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act. In the affidavit of Shri Neeraj Kumar accompanying the delay condonation application it is stated that the appellant had filed a writ petition against CESTAT order in the Delhi High Court, which was numbered as Writ Petition (Civil) No.12992 of 2009 through his lawyers Shri R.K. Handoo & Associates, New Delhi on 23.10.2009. The writ petition was heard by the Division Bench of Delhi High Court on 9.11.2009. The Bench permitted the deponent to convert the writ petition into appeal. On the same day on 7th April, 2010 before the writ petition was converted into appeal, the Delhi High Court passed an interim order as follows:- "09.11.2009 Present: Mr. R.K. Handoo, Advocate with Mr. Manish Shukla and Mr. Aditya Chaudhary, Advocate for the petitioner. Mr. Mukesh Anand, Advocate with Mr. Sumit Batra and Mr. Shailesh Tiwari, Advocates for the responent. CM 13918 of 2009 (Exemption) Allowed subject to all just exceptions. CM is disposed of. W.P. (C) 12992 of 2009 Since statutory appeal is preferred against the impugned order, which lies in this Court, on oral prayer made by learned counsel for the petitioner this writ petition is concerted into appeal. The Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter appears to have been again adjourned and on 29.4.2011 the following order was passed:- "29.04.2011 Present:Mr. R.K. Handoo and Mr. S.P. Pandey, Advocates for the appellant. Mr. Mukesh Anand, Advocate for the respondent. CUSAA No.10 of 2009 A request for passover is made by learned counsel for the respondent. However, learned counsel for the appellant states that he will be in some personal difficulty after lunch. A copy of inquiry report be given to learned counsel for the appellant as well. Accordingly, the present case is adjourned to 14th September, 2011. A.K. Sikri, J. M.L. Mehta, J." 8. On 5.1.2012 the Delhi High Court dismissed the appeal as withdrawn with liberty to file appeal before the jurisdictional High Court. The order is quoted as below:- "CORAM: Hon'ble Mr. Justice Sanjiv Khanna Hon'ble Mr. Justice R.V. Easwar ORDER 05.01.2012 1. Vide order dated 09.11.2009 the present writ petition was converted and has been numbered as an appeal under the Customs Act. 2. The order in original, i.e. first order, which was made the subject matter of challenge before the Customs Excise and Service Tax Appellate Tribunal was passed by the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as thus under bonafide belief that the Delhi High Court has jurisdiction to hear the appeal. The Delhi High Court being a civil court hearing the appeal and the cause of action being the same, the Court may condone the delay under Section 14 of the Limitation Act. He submits that delay in the case of Section 14, where the appellant was pursuing the remedy in wrong Court under bonafide belief and in good faith should be relaxed liberally and sympathetically vide Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi, (1975) 4 SCC 628; CST v. Parson Tools and Plants, (1975) 4 SCC 22; Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. (III), (2004) 3 SCC 458 and Kusum Ingots and Alloys Ltd. v. Union of India & Anr., (2004) 6 SCC 254. 11. Shri S.P. Kesarwani, Addl. Chief Standing Counsel on the other hand submits that the appellant had wrongly filed a writ petition in the Delhi High Court in which before the writ petition was converted into appeal, an interim order was passed. The Delhi High Court observed that the appellant has deposited a sum of Rs. 2 lac during the pendency of the appeal and on further deposit of Rs. 3 lacs, there shall be stay of proceedings. The appellant had obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principles of law was upheld. The appellant has not pleaded in his application for condonation of delay that he or his counsel had no knowledge that the appeal has to be field in Allahabad High Court. Firstly he field writ petition in which liberty was given on oral prayer to be converted into appeal and on the same day an interim order was passed without converting the writ petition into appeal. The Delhi High Court extended the time to deposit Rs. 3 lacs and inspite of objections taken by the counsel appearing for the department and noticing the judgment in Ambica Industries case, which is well known to the counsels appearing in the relevant branch of law, allowed the counsel appearing for the appellant some time to look into the aspect of jurisdiction of the Delhi High Court. From this date i.e. on 22nd September, 2010, when the counsel appearing for the appellant had taken time to look into the aspect of jurisdiction, it was open to them to withdraw the appeal at any time. They did not object or contest to maintain the jurisdiction of the Delhi High Court and continued to take adjournments. On 5.1.2012 no objection was raised that the Delhi High Court has jurisdiction in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng out of the orders of the District Court rejecting application under Section 5 read with Section 14 of the Act on the ground that the appellants were not only negligent but were acting and pursuing the entire matter without due diligence. They failed to appear and contest the suit on which exparte decree was passed. Thereafter they failed to file appeal in the proper forum, which was brought to their notice at the initial stage by the respondents filing an objection. Despite the fact they did not take any step to withdraw the appeal and also did not appear in the High court on dates fixed in the matter. The observations of the Supreme Court are quoted as below:- "15. Considering the entire records, we find that the appellants are not only negligent but have been acting and pursuing the entire matter without due diligence as would be apparent from the fact that they initially failed to pursue the suit in right earnest, having failed to appear and contest the suit, due to which an ex-parte decree had to be passed by the court. Even thereafter, they failed to file the appeal in the proper forum, which was brought to their notice right at the initial stage by the respondent's fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order was received by the Appellant on 5th October 2007. The Appellant states that there is a delay of 1056 days in filing the above appeal, the reasons for which are being stated in detail hereunder and, therefore, the Appellant above named prays that the delay in filing the present appeal may please be condoned. 2. RELIEFS SOUGHT : (a) That this Hon'ble Court be pleased to condoned the delay of 1056 days in filing the said Appeal; (b) That such further and other reliefs as the facts and circumstances may require. 3. REASONS FOR THE DELAY : 3.1 The Appellant declares that there is delay of 1056 days in filing the appeal as prescribed in the Limitation Act, 1963. 3.2 The Appellant further states that the delay occurred as the Writ Petition was filed before Delhi High Court on 5th November, 2007. The said writ was filed under the provisions of Articles 226 and 227 of the Constitution of India seeking issuance of a writ order or direction in the nature of Mandamus or any other writ for setting aside the impugned order dated 2nd August, 2007, passed by the Appellate Tribunal for Foreign Exchange under Rule 10 of the Adjudicating Proceedings and Appeal, 2000 for Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial of Offences relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent Advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. The promptness with which the learned senior counsel appearing for appellant - Kartik K. Parekh made a statement before the Delhi High Court on 7.11.2007 that the writ petition may be converted into an appeal and considered on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussion, we hold that the impugned order does not suffer from any legal infirmity." 21. In the present case also as in the case of Ketan v. Parekh (Supra), the appellant was assisted and had the services of the counsel's, who are expert in the central excise and customs cases. They first filed a writ petition, and then without converting it into appeal obtained an interim order. They kept on getting the matter adjourned and thereafter inspite of specific objection taken, citing the relevant case law, which is well known, took time to study the matter. Thereafter, they took more than one year and three months, to study the matter to withdraw the appeal. They took a chance, which apparently looking to the facts in Ketan V. Parekh's case and this case appear to be the practice of the counsels appearing in such matters at Delhi High Court and succeeded in getting interim orders. The Supreme Court has strongly deprecated such practice of forum shopping. In this case also there is no pleading that the writ petition and thereafter appeal was filed in Delhi High Court, under bonafide belief that it had jurisdiction to hear the appeal and that the appellant was pursuing the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
