The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Commercial Appeal No.13 of 2023 -------- Ram Kripal Singh Construction Private Limited, a company duly registered under the Companies Act 1956, having its Head Office at 702, Panchwati Plaza, Kutchery Road, P.S. Kotwali, P.O. & District Ranchi-834001 (Jharkhand), being represented through one of its directors, Shri Ranjan Kumar aged about 46 years, son of Shri Ram Kripal Singh, resident of Mohalla Shri Krishna Nagar, Deepshikha Road, P.O. & P.S. & District Begusarai-851101 (Bihar) and presently residing at Ratan Kunj, Shashi Vihar, Cheshier Home Road, P.O. Bariatu, P.S. Sadar, District-Ranchi – 834009 (Jharkhand). … … Plaintiff/Appellant -Versus- 1. The State of Jharkhand through the Secretary, Department of Building Construction, Government of Jharkhand, Project Building, P.O. & P.S. Dhurwa, District-Ranchi-834004 (Jharkhand). 2. The Deputy Commissioner, Ranchi, New Collectorate Building, Kutchery Road, P.S. Kotwali, P.O. & District Rachi- 834001 (Jharkhand). 3. The Executive Engineer, Special Works Division, Building Construction Department, Ranchi, Line Tank Road, P.O. Kotwali, P.O. & District Ranchi-834001 (Jharkhand). --------- … … Defendants/Respondents CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI ----- For the Appellant For the Respondents : Mr. Pradeep Kr. Deomani, Advocate : Mr. Anish Kr. Mishra, AC to Sr. SC-I 05/Dated: 29.07.2024 --------- Per Sujit Narayan Prasad, A.C.J : 1. The instant appeal is under Section 13 of the Commercial Courts Act, 2015 directed against the judgment and decree dated 12.07.2018 passed by learned Presiding Officer, Commercial Court, Ranchi in Commercial Case No.478 of 2011, whereby and whereunder, the suit brought by the plaintiff/appellant was dismissed on contest, holding Page 1 Comm. Appeal No.13 of 2023 that the plaintiff/appellant was not entitled to any relief or reliefs as sought for in the plaint. 2. The appeal is barred by limitation, as per the office note, since the same has been filed after a delay of 1022 days. Argument advanced on behalf of the appellant: 3. Mr. Pradeep Kr. Deomani, learned counsel appearing for the appellant has submitted that although the delay of 1022 days has been pointed out in filing the instant appeal against the judgment and decree dated 12.07.2018 passed in Commercial Case No.478 of 2011 but the aforesaid office note is absolutely improper, reason being that the appeal has been filed within the period as directed by the Coordinate Division Bench of this Court vide order dated 16.03.2023 passed in Commercial Appeal No.08 of 2019 whereby and whereunder while dismissing the commercial appeal, liberty has been granted to the appellant to file a fresh Commercial Appeal. 4. It has been contended that the instant appeal has been filed within the period of three months, hence, by taking into consideration the order dated 16.03.2023 passed by the Coordinate Division Bench of this Court in Commercial Appeal No.08 of 2019 since the appeal has been filed within a period of three months as per the direction contained therein, Page 2 Comm. Appeal No.13 of 2023 it cannot be said, as has been pointed out by the office, that the appeal is barred by limitation of 1022 days. 5. The learned counsel while arguing for the purpose of contesting to the period of limitation as has been pointed out by the office to the extent of 1022 days, has raised two folds points :- (i) The liberty has been granted by the Coordinate Division Bench of this Court to file appeal within a period of three months and since the appeal has been filed within a period of three months, hence it cannot be said that the appeal is barred by limitation. (ii) Even accepting that the appeal is barred by limitation then also the same is fit to be condoned in view of the provision of Section 14 of the Limitation Act, 1963 which provides that the period consumed in the pending proceeding will have to be excluded from the period of limitation. Argument advanced on behalf of the respondent: 6. While on the other hand, Mr. Anish Kr. Mishra, learned counsel appearing for the respondents, has vehemently opposed the submission made on behalf of the appellant by raising the grounds in dismissing the appeal on the ground of limitation. 7. It has been contended by referring to the provision of Section 13 of the Commercial Courts Act, 2015 wherein Page 3 Comm. Appeal No.13 of 2023 statutory period has been provided for filing the appeal, i.e., within a period of 60 days. 8. It has been contended that the aforesaid provision of Section 13 of the Commercial Courts Act, 2015 has been interpreted by Hon’ble Apex Court in the case of Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited [(2021) 6 SCC 460] wherein the consideration has been given regarding the applicability of the provision of Section 5 of the Limitation Act, 1963. 9. Learned counsel for the respondent, in order to strengthen his augment, has relied upon a judgment rendered by the Hon’ble Apex Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited (supra) wherein the Hon’ble Apex Court while stretching the period of limitation in exceptional circumstances has observed that the limitation is to be condoned by way of exception and not by way of rule, i.e., only in case where a party has otherwise acted bona fide and not in a negligent manner. 10. It has been contended basing upon the aforesaid proposition of law as has been settled by Hon’ble Apex Court in the case of Government of Maharashtra (Water Page 4 Comm. Appeal No.13 of 2023 Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited (supra) that in the matter of commercial disputes, where the primary object is to have the expeditious disposal of the disputes and that is the reason the statutory period has been provided under the provision of Section 13 of the Commercial Courts Act, 2015 to file appeal within a period of 60 days. 11. Therefore, the power has been conferred to the court for condoning the delay in exceptional cases by allowing the application filed under Section 5 of the Limitation Act, 1963 and in the rarest of rare cases, the said power can be exercised but herein, even no interlocutory application has been filed for condonation of delay which shows negligent approach of the appellant.
Legal Reasoning
approached this Court in a very negligent manner. Page 7 Comm. Appeal No.13 of 2023 20. The argument, therefore, has been advanced that in such circumstances if the period of limitation will be waived to be counted from the date of the liberty so granted by the Court of law, then the very purpose and object of the Commercial Courts Act, 2015 will be frustrated. 21. The further argument has been advanced that there is no dispute about the proposition of law regarding the applicability of Section 14 of the Limitation Act, 1963 since Section 14 is made to be applicable in a case where the litigant has approached the wrong forum after filing the appeal within statutory period and in such circumstances, the period consumed in pending litigation before the incorrect forum is to be excluded but that is not the factual aspect herein, rather, here the question of negligent approach and due diligence is the matter of concern since, the appellant had approached to the correct forum but in a negligent manner and without due diligence. 22. Thus, the instant case is neither the case of pending litigation before incorrect forum, rather, the forum was correct which suggests the negligent approach of the appellant and the lack of diligence in pursuing the remedy of appeal. 23. The learned counsel, based upon the aforesaid ground, has submitted that since the delay is of 1022 days and based Page 8 Comm. Appeal No.13 of 2023 upon the aforesaid reasons, the instant appeal is fit to be dismissed on limitation. Analysis and Consideration: 24. Heard learned counsel for the parties. 25. This Court, before appreciating the rival submissions made on behalf of the parties, is of the view that the issue of limitation is to be dealt with herein for the purpose of showing the sufficient cause. 26. The consideration of meaning of ‘sufficient cause’ has been made in Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013) 14 SCC 81], wherein, it has been held at paragraphs 9 to 15 which read hereunder as:- “9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “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”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. Page 9 Comm. Appeal No.13 of 2023 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. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336], Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .) 10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”. 11. 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. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .) 12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve Page 10 Comm. Appeal No.13 of 2023 what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute. 13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” 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. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh
Arguments
12. Hence, according to the learned counsel, in the instant case if the litigant is able to show the sufficient cause which caused delay in filing the appeal, then only in exceptional circumstances the delay in filing the instant appeal can be condoned. 13. It has been submitted by referring to the factual aspect of the present case that the suit was filed before the Commercial Court having its jurisdiction which has been dismissed vide order dated 12.07.2018. Page 5 Comm. Appeal No.13 of 2023 14. The appellant preferred an appeal before this Court being Commercial Appeal No.08 of 2019 but the Coordinate Division Bench of this Court has dismissed the said appeal, however, with the liberty to the appellant to file a fresh Commercial Appeal after getting necessary correction in the judgment and decree in Commercial Case No.478 of 2011 within a period of three months from the date of the order. 15. The submission, therefore, has been made that the limitation cannot be counted from the date of order passed by the Coordinate Division Bench whereby and whereunder liberty has been granted to file appeal within a period of three months, rather, the period of three months has only been given for the purpose of filing appeal and, as such, it cannot be presumed that the limitation will be counted from the date of passing of the order by the Coordinate Bench in Commercial Appeal No.08 of 2019. 16. The reference of the provision of Order XXIII Rule 2 of the C.P.C. has also been made whereby and whereunder it has been provided that in any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. 17. The office, based upon the aforesaid provision of law, as provided under Rule XXIII Rule 2 of the C.P.C., has pointed Page 6 Comm. Appeal No.13 of 2023 out the limitation, then in such circumstances, it cannot be said that the said office note is improper and not acceptable. 18. The “sufficient cause” has also been taken into consideration in the Judgment rendered in Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited (Supra) whereby and whereunder it has been dealt with that the “sufficient cause” will only be said to be sufficient cause if the party concerned without any negligent approach has followed the legal procedure in filing the appeal with all due diligence. 19. Herein, it cannot be said that the appellant has not shown the negligent attitude since, vide order dated 03.03.2021 the order under challenge was sent to the Commercial Court, Ranchi for correction for which the appellant had filed I.A. No.5489 of 2020 but after two years, when the matter came up on Board, learned counsel for the appellant stated that the corrected copy of the judgment and decree in Commercial Case No.478 of 2011 is still defective, as such, the said appeal was dismissed by the co-ordinate Division Bench of this Court with a liberty to file a fresh one, which itself shows that the appellant had not approached the Court with all due diligence, rather, the appellant had