The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Commercial Appeal No. 07 of 2023 with I. A. No. 7832 of 2024 1. The State of Jharkhand through its Principal Secretary, Rural Works Department -cum- Chief Executive Officer, JSRRDA, 3rd Floor, FFP Building, PO & PS Dhurwa, Ranchi, Jharkhand 2. The Chief Engineer, Jharkhand State Rural Road Development Authority, 3rd Floor, FFP Building, PO & PS Dhurwa, Ranchi, Jharkhand 3. The Superintending Engineer, RWD Works Circle, Chaibasa, PO & PS Chaibasa, District West Sighbhum 4. The Executive Engineer -cum- Project Director, Rural Works Department, Works Division, Jamshedpur, PO & PS Jamshedpur, Dist. East Singhbhum. 5. The Executive Engineer -cum- Project Director, Rural Works Department, Works Division, PO & PS Saraikella- Kharsawan, Jharkhand … … Defendants/Appellants Versus 1.M/s. Prem Kumar, a proprietorship firm, represented by its proprietor Mr. Prem Kumar, son of late K.M.P. Singh, having its Registered Office at Qr. No. 281/2/3, Road No. 9, Adityapur-2, PS R.I.T., PO Adityapur, District Saraikella- Kharsawan, Jharkhand … … Plaintiff/Respondent 2. The Assistant General Manager, State Bank of India, Main Branch, Bistupur, PO & PS Bistupur, Jamshwdpur, Dist. East Singhbhum. … .. Defendant/Proforma Respondent ------ CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ------- For the Appellants : Mr. Praveen Akhauri, SC Mines-1; Mr. Sharabhil Ahmed, AC to SC Mines-1 For the Respondents : Mr. Vibhor Mayank, Advocate; Mr. Oishi Das, Advocate; Mr. Shivam Kumar, Advocate -------- Order No. 06 Dated: 28 th August, 2024 Per Anubha Rawat Choudhary, J. 1 Heard the learned counsel for the parties. 2 This appeal has been filed against the judgement and decree dated 27.02.2021 passed by learned district judge 1st -cum- P.O. commercial
Legal Reasoning
court, Jamshedpur. The suit was filed by the plaintiff, interalia, seeking a declaration that the termination of the contract dated 04.04.2011 and another order dated 29.06.2011 were illegal, unlawful and contrary to the principles of natural justice and other connected reliefs. 3 As per the office note the appeal is barred by limitation by 316 days. The explanation for delay has been mentioned in paragraph 3 to 11 of 1 the petition seeking condonation of delay through Interlocutory Application no. 7832 of 2024 are quoted as under: - “3. That it is stated that after passing of the impugned judgment and decree, the file of the same was sent to the office of the Advocate General for opinion and on 25.10.2021, it was opined to file the appeal immediately keeping into view the period of limitation. 4. That it is stated that owing to the then prevailing pandemic circumstances, although the period of limitation was extended in terms of order dated 10.01.2022 passed by Hon'ble Supreme Court in Suo Moto Writ Petition(C) No. 03 of 2020 till 28.02.2022, the stalemate and crisis continued thereafter also. 5. That it is stated that further looking into the nature of the case, the statement of the fact of the case was required to be prepared by a lawyer acquainted with the niceties of the commercial court cases to whom the file could be handed over in the month of October 2022. 6. That it is stated that after getting the statement of fact prepared, the same was sent for its due approval at the end of the Chief engineer of the department concerned. 7. That it is stated that vide letter dated 09.02.2023 issued by Executive Engineer, the statement of fact was sent to the Chief Engineer along with the statement of fact for its due approval. 8. That it is stated that vide letter dated 04.04.2023, the Chief Engineer authorised the Executive Engineer, Rural Works Department (Work Division), Saraikella Kharsawan, to file the present appeal. 9. That it is stated that thereafter the file and the statement of fact was handed over to the State Counsel to prepare the memo of appeal as per the statement of fact and the appeal thereafter could be filed on 18.04.2023 without causing any further delay. 10. That it is stated that all the facts narrated hereinabove consumed some time causing the delay in filing the instant revision. 11. That it is stated that since the petitioner is a government body, the decisions to take steps with respect to legal proceedings are taken at after resolutions and approvals.” 2 4
Legal Reasoning
The learned counsel for the appellants has submitted that though the 5 6 appeal is time barred by 316 days but the explanation for condonation of delay has been furnished in paragraph nos. 5 to 11 of the petition seeking condonation of delay. The learned counsel has also submitted that impugned judgement is dated 27.2.2021 and taking into consideration the period covered by various judgments of the Hon'ble Supreme Court relating to COVID-19 pandemic period , the calculation for the purposes of limitation has been shown by the office to have expired on 6.6.2022. He submits that the appellants being the State a liberal view is required to be taken as the decision making takes place at various levels. He has also relied upon a judgment passed by the Hon'ble Supreme Court in the case of State of Manipur and others v. Koting Lamkang reported in (2019)10 SCC 408 , paragraph nos. 7 and 8. The learned counsel submits that in order to safeguard the interest of the State delay may be condoned. The learned counsel appearing on behalf of the respondent has opposed the prayer and has submitted that the matter regarding condonation of delay in matters arising out of commercial suit has to be considered in the light of the very object of the Commercial Courts Act. The learned counsel submits that the explanation as furnished by the appellants in the petition seeking condonation of delay is not fit to be accepted in the eyes of law. He submits that the petition seeking condonation of delay is itself a sketchy petition and there is no explanation whatsoever in connection with delay beyond 6.6.2022 except the movement of file from one authority to the other that too without giving particulars of such movement of files. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of Maharashtra v. Borse Bros. Engineers & Contractors (P) Ltd., (2021) 6 SCC 460 and has referred to paragraph no. 65 of the said judgment. The learned counsel has also referred to paragraph no. 59 of the judgment to submit that no extra liberty is to be granted to the State and the Hon'ble Supreme Court has also taken into consideration the earlier judgment in the case of Postmaster General v. Living Media India Ltd. reported in (2012)3 SCC 563. 3 7 After hearing the learned counsels for the parties and after going through the averments made in the petition seeking condonation of delay of 316 days, this Court finds that the impugned judgment is dated 27.2.2021 and taking into consideration the period of COVID-19 and also the summer vacation of the High Court the office has calculated that the limitation of 60 days for filing the appeal expired on 6.6.2022. The paragraph no.5 of the petition for condonation of delay states that the statement of the fact was to be prepared by a lawyer who is well-acquainted with the niceties of the commercial court cases to whom the file could be handed over in the month of October, 2022. Thus, there is no explanation for delay for the period from 6.06.2022 till October 2022. 8 Paragraph no.6 and 7 of the petitions seeking condonation of delay refers to preparation of statement of facts and requirement of due approval and approval was said to have been given by the executive engineer by order dated 09.02.2023. Thus, there is no cogent explanation for the long period from October 2022 to 03.04. 2023 and it appears that the appellants have taken the matter very casually. The required authorization to file the appeal was given on 4.4.2023 and, thereafter, the case was filed on 18.4.2023. 9 This Court has gone through the petition for condonation of delay and finds no cogent explanation for delay in filing the appeal, this Court is not satisfied with the sketchy explanation furnished in the petition seeking condonation of delay. On the one hand practically there in no explanation for delay from 06.06.2022 to October 2022 and the explanation for the period October 2022 till the date of filing on 18.04.2023 reflects that the appellants have taken the matter very casually and there is no cogent and acceptable reason for delay. 10 So far as the judgement passed in the case of State of Manipur and others v. Koting Lamkang (supra) as relied upon by the learned counsel for the appellant is concerned, the same does not apply to the facts and circumstances of this case. In the said case , the appellant state had filed the appeal before a wrong forum and after its dismissal the state took about 11 months to file the appeal before the appropriate forum and the delay was not duly explained. The Hon’ble Supreme 4 Court observed that the High Court had not condoned the delay even when the court was satisfied that the dismissal of the case would harshly affect the state and in the said case it was observed that the matter involved strategically sensitive case involving security and public interest was likely to suffer. In the present case, there is no such harsh circumstances as the matter arises out of contractual rights between the parties and arises out of commercial dispute where no special treatment is required to be given to the appellant merely because the appellant is a state. This court is of the concerned view that in a commercial dispute arising from the judgement of commercial court constituted under Commercial Courts Act, 2015, the state and the private party stand on equally footing. 11 The arguments of the appellants claiming special treatment to the State in the matter of condonation of delay is not acceptable to this Court also in view of the observations made by the Hon'ble Supreme Court in paragraph 59 of the judgement passed in Borse Brothers Engineers (supra) wherein it has been held that merely because the Government is involved, a different yardstick for condonation of delay cannot be laid down. While making such observation the Hon’ble Supreme Court has relied upon the judgement passed in the case of Postmaster General v. Living Media (India) Ltd (supra) has been taken into consideration wherein it has been held that unless the governments have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. The paragraph 59 of the judgement of Borse Brothers Engineers (supra) is quoted as under:- “59. Likewise, merely because the Government is involved, a different yardstick for condonation of delay cannot be laid down. This was felicitously stated in Postmaster General v. Living Media (India) Ltd. as follows : “27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including 5 the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 12 Further in paragraph 63,64 and 65 of the judgment in Borse Brothers Engineers (supra) the Hon’ble Supreme Court has, interalia, considered the object of Commercial Courts Act, 2015 it has been held that a delay beyond 60 days in filing appeal under section 13(1-A) of the commercial courts Act, 2015 is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches. In the said case vide paragraph 65 , a delay of 131 days beyond 60 days was not condoned by observing that there was no explanation worth the name contained in the condonation of delay application, beyond the usual file-pushing and administrative exigency. 13 In the present case, there is delay of 316 days and the reason for delay shows complete lack of bonafide and seriousness on the part of the 6 appellant in taking steps for filing the appeal and the petition reflects reckless and negligent attitude of the appellants resulting in delay in filing the appeal. The appellants have failed to satisfy and persuade this court to exercise its discretion in condoning the delay in filing this appeal. Rather, condonation of delay would be contrary to the law laid down by the Hon’ble Supreme Court in the case of Borse Brothers Engineers (supra). This court is of the considered view that any sympathy or latitude shown to the appellant would be beyond law and cause grave injustice to the respondents. The litigants are not only required to file appeal on time but in case of delay they are required to give convincing and acceptable explanation in the form of ‘sufficient cause’ to persuade the court to exercise sound discretion in the matter of condonation of delay. 14 The appellants have failed to show sufficient cause and sufficient reason for condonation of delay of 316 days beyond prescribed period of 60 days in filing this appeal. This court is not inclined to condone the delay in filing this appeal. 15 Accordingly, the petition seeking condonation of delay is dismissed. 16 Consequently, the present commercial appeal also dismissed. (Ratnaker Bhengra,J.) (Anubha Rawat Choudhary, J.) KNR 7