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TMI Blog2024 (11) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for appellant submitted that no action has been taken against the erstwhile counsel for his alleged misconduct - no satisfactory explanation is set up by the appellant to explain their having not filed the appeal during the period from 17.12.2012 to 29.11.2019. The period from 29.11.2019 to 20.09.2024 has been explained by the appellant, pleading that they filed application under Order IX Rule 13 CPC, which got dismissed, so they filed the present appeal on 08.10.2024. The appellant has claimed benefit under Section 14 of the Limitation Act for the said period of almost five years - The expression good faith is defined under Section 2(h) of the Limitation Act, stipulating that nothing shall be deemed to be done in good faith which is not done with due care and attention. What is to be seen is as to whether the institution and prosecution of the other proceeding in wrong forum was done with due care and attention, thereby in good faith. Another requirement of Section 14 of the Act is that the applicant must have been prosecuting the previously instituted proceedings with due diligence. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant in order to explain this inordinate delay in filing the appeal are as follows. During pendency of the suit, which culminated in the impugned judgment and decree dated 18.09.2012, counsel for the appellant (defendant no. 1 before the trial court) stopped appearing without any intimation to the appellant, leaving the appellant under an impression that the matter was being pursued by the counsel. In the year 2011, due to changes in management and financial constraints, the appellant company closed its office in New Delhi and thereafter their authorized representative left job without updating status of the suit, due to which the appellant company lost track. On 27.09.2019, the appellant company received demand notice under Insolvency and Bankruptcy Code (IBC) issued by the present respondent no. 1 and it is only after receipt thereof, that the appellant came to know about disposal of the suit. On 15.10.2019, the appellant received certified copy of the impugned judgment and decree, after which on 29.11.2019, the appellant filed an application under Order IX Rule 13 CPC seeking setting aside of the ex-parte judgment and decree. The said application under Order IX Rule 13 CPC was di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se set up by the applicant under Section 5 of the Act must be construed liberally in favour of the applicant. Unless no explanation for delay is submitted or the explanation furnished is wholly unacceptable, the court must liberally condone the delay, if third party rights had not become embedded during the interregnum. It is not the length of delay but the sufficiency of cause which has to be examined by the court, in the sense that if there is sufficient cause, delay of long period can be condoned but if it is otherwise, delay of even a few days cannot be condoned. The purpose of construing the expression sufficient cause liberally is to ensure substantial justice when no negligence or inaction or want of bona fides is attributable to the applicant. 5.1 No doubt, for the fault of counsel, the litigant should not be made to suffer. But that cannot be a blanket rule. Each case has to be examined on its peculiar factual matrix. The protection of the said rule, which can in appropriate cases be extended to an illiterate lay person, cannot be extended to an educated litigant or a corporate entity or the government bodies. Merely by engaging a counsel, the litigant cannot claim to be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs. (emphasis supplied) 5.4 In the case of Pundlilk Jalam Patil (dead) by LRs vs Executive Engineer Jalgaon Medium Project, (2008) 17 SCC 448, the Hon'ble Supreme Court of India held that basically the laws of limitation are founded on public policy and the courts have expressed atleast three different reasons supporting the existence of statutes of limitation, namely (i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, and (iii) that persons with good causes of action should pursue them with reasonable diligence. It was observed that the statutes of limitation are often called as statutes of peace insofar as an unlimited and perpetual threat of limitation creates insecurity and uncertainty which are essential for public order. 5.5 In the case of Lanka Venkateshwarlu vs State of Andhra Pradesh, (2011) 4 SCC 363, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e eschewed by courts. 5.7 In the case of Pathapati Subba Reddy (died) by LRs Ors. vs The Special Deputy Collector (LA), 2024 SCC OnLine SC 513 the Hon ble Supreme Court recapitulated the scope of Section 5 Limitation Act and held thus: 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... felt piqued and refused to appear before the court. Maybe, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted . (emphasis supplied) 5.9 In the case of Moddus Media Private Ltd. vs Scone Exhibition Pvt. Ltd., 2017 SCC OnLine Del 8491, this Court observed thus: 13. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation prescribed for filing appeal expired on 17.12.2012. The delay till 29.11.2019 (the date of filing of application under Order IX Rule 13 CPC) has been attributed by the appellant company to the professional misconduct of their erstwhile counsel. The appellant is not an individual litigant, much less an illiterate lay person. The appellant is a limited company. Admittedly, the appellant was being represented through an employee of theirs, who left job. That being so, the appellant cannot claim no duty to be diligent in keeping track of the lis. Further, as mentioned above, during arguments learned counsel for appellant submitted that no action has been taken against the erstwhile counsel for his alleged misconduct. In other words, the erstwhile counsel is not even aware that he is being blamed for the default. In such circumstances, I find it difficult to believe the stand taken by the appellant. For, believing the version of the appellant that the said delay of about seven years took place due to professional misconduct of their erstwhile counsel would mean condemning the said counsel unheard, that too, on judicial record. I find no satisfactory explanation set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the good faith of the applicant. Where an act of the applicant is found to lack good faith, benefit of Section 14 of the Act cannot be extended. The expression good faith is defined under Section 2(h) of the Limitation Act, stipulating that nothing shall be deemed to be done in good faith which is not done with due care and attention. What is to be seen is as to whether the institution and prosecution of the other proceeding in wrong forum was done with due care and attention, thereby in good faith. Another requirement of Section 14 of the Act is that the applicant must have been prosecuting the previously instituted proceedings with due diligence. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by reasonable and prudent person under the particular circumstances. 9. In the present case, complete lack of due care and attention is writ large on the face of record. According to the appellant s own case, for the first time they became aware of the impugned judgment and decree upon receipt of demand notice on 27.09.2019 and filed application under Order IX Rule 13 CPC on 29.11.2019, which application was dismissed by the trial court vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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