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TMI Blog2020 (2) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... t be equated with prayers made in repeated representations seeking a change of position. Acquiescence is not apposite to patience as acquiescence is not just standing-by, and refers to assent on being aware of the violation or reflects conduct showing waiver. Laches is this case would require sheer negligence of the nature and type which would render it unjust and unfair to grant relief. When, the liability to pay ₹ 4,99,900/- is acknowledged and accepted, then to deny relief by directing payment in terms of the order under Section 132(5) of the Act would be unjust, unfair and inequitable. Statute mandates the respondents to make payment. To be fair to the counsel for the respondents, it was conceded that an appropriate order may be passed to do justice. For the aforesaid reasons, the appeal is allowed with the direction to the respondent authorities to pay ₹ 4,99,900/- with interest as per law within a period of three months from the date on which the copy of this order is received. - CIVIL APPEAL NO. 625 OF 2020 - - - Dated:- 24-1-2020 - HON'BLE MR. JUSTICE S. ABDUL NAZEER AND HON'BLE MR. JUSTICE SANJIV KHANNA For Appellant(s) Mr. S.C. Tiwary, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 112-A and thereafter passed an order under Section 132(5) dated 18.09.2008. By letter dated 19.09.2008, the Deputy Commissioner of Income-Tax 1(2), Mumbai informed the appellant that the seized cash need not be retained in the case. Curiously, this letter had also stated: ....The same cash shall be released after obtaining approval of CIT-1, Mumbai. However, the seized cash is not lying presently in the custody of CIT-1, Mumbai. 2. The same fact have been brought to your notice vide the above mentioned letter under reference. You are once again requested to give any information available with you regarding such seized cash so that this office will be able to expedite the matter. By another letter dated 24.10.2008, Deputy Commissioner of Income-Tax 1(2), Mumbai wrote to the appellant stating: ....you are once again requested to furnish any information which may be useful in locating present whereabouts of seized cash such as the names of various officers involved in search action and assessment proceedings etc. You are once again requested to give any information available with you regarding such seized cash so that this office will be able to expedite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gations), New Delhi inter alia stating that the seized cash had not been transferred to the concerned commissioner in Mumbai and therefore the same should be transferred as the appellant was pressing hard for the refund. The respondents have not placed on record further correspondence and steps taken to ensure refund. This letter dated 11.10.2017 admits and acknowledges liability to refund the amount. 11. Left with no option, the appellant in July, 2018 had filed Writ Petition No. 2079/2018 before the Bombay High Court which has been dismissed vide the impugned judgment dated 17.09.2018 primarily on two grounds. First, the appellant should have filed an execution petition under Rule 647 of Chapter XXXIII of the Bombay High Court (Original Side) Rules,1980 which stipulates that an order made under this Chapter shall be executed, as if it were a decree made in exercise of the Ordinary Original Civil Jurisdiction of the High Court. Second, writ jurisdiction is not meant to confer benefit and enable litigants who sleep over their rights to derive an advantage for themselves . The appellant should have been prudent enough to know as to how monies, allegedly retained illegally, hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, a decree of flexibility is needed. (See the dissenting opinion of Justice Breyer of the Supreme Court of the United States in Paula Petrella v. Metro-Goldwyn Mayer, Inc., et al. ) Referring to the exercise of writ jurisdiction in Tilokchand and Motichand and Others v. H.B. Munshi and Another 1969 2 SCR 824, Hidayatullah C.J. had held that there is no lower and upper time limit for entertaining the writ petition, and each case must be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction with utmost expedition . In other words, writ petitions should be filed within a reasonable period which period has to be considered with reference to the facts of a particular case. Therefore, as courts of equity, we have evolved a principle of practice, and not as a rule of law, not to enquire into belated and stale claims, notwithstanding that no period of limitation is prescribed either by the Constitution or by the Limitation Act. These principles enable the writ court to administer justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. 15. In Shankara Cooperative Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 this Court had highlighted and specified the following principles which are to be applied when the writ court examines the issue of delay, laches and acquiescence: 54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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