2018 (2) TMI 2142 - HC - Indian Laws

Section 5: Petition for 765-day delay denied as insufficient cause; inconsistent pleadings suggest bad faith, delay

M/s Ruskim sea Foods Limited, Versus. M/s Evergreeen Sea Foods Pvt., Ltd., Chennai, Mr. Aslam Sole Proprietor, Cochin, Gelpeixe S.A. Sete Casa Apariado 42, Portugal, Vee Tee Jay Exports Pvt., Ltd., Cochin

HC dismissed the petition seeking condonation of a 765-day delay, finding the appellant failed to establish 'sufficient cause' under Section 5 Limitation ... Condonation of delay of 765 days in preferring the Appeal - sufficient cause for delay or not - HELD THAT:- Ordinarily, the 'Condonation of Delay' is a matter of discretion to be exercised by the Concerned Court. Also, it is true that the length and breadth of delay is not relevant, but the acceptance of explanation can only be a relevant criterion for the concerned Court to deal with / condone the aspect of 'Condonation of Delay'. However, in this regard, the Petitioner / concerned litigant is to offer / ascribe sufficient reasons or project sufficient cause or good cause to condone the delay with a view to enable the Concerned Court to take a liberal view with a view to secure the ends of justice. It is to be borne in mind that the term 'Sufficient Cause' under Section 5 of the Limitation Act, 1963 is an elastic one to enable the Court to apply the Law in a meaningful fashion, with a view to secure the ends of justice. However, 'Sufficient Cause' / 'Good Cause' is a condition precedent for exercise of discretion by the Concerned Court in regard to the 'Condonation of Delay'. If the delay in question is not either properly or satisfactorily and convincingly explained, the Court of Law cannot condone the delay on sympathetic ground alone, as per decision of Hon'ble supreme Court BrijeshKumar V. State of Haryana [2015 (7) TMI 21 - SUPREME COURT]. The Petitioner has come with unclean hands and the Hon'ble Supreme Court in the decisions, which were cited by the Petitioner, had categorically held that the 'length of delay is not a matter, but the acceptance of explanation is only criteria and length of delay may be long, but if there is justification, long delay can also condoned'. If there is a short delay and the explanation is not satisfactory and if it is on account of smack or malafide or on account of dilatory strategy, this Court cannot help the persons, who come before this Court to condone the delay and protract the proceedings. This Court, on a careful consideration of the respective contentions and also after going through contents and affidavit filed by the Petitioner / Appellant and also taking note of the detailed counter filed on behalf of the 1st Respondent / Plaintiff, is of the considered view that the Petitioner / Appellant has taken a prevaricating and an inconsistent stand and also projecting one set of plea before the Courts in United Kingdom and another type of stand before this Court which by any stretch of imagination cannot be countenanced by this Court. Petition dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether the delay of 765 days in preferring the Original Side Appeal (refiling) constitutes 'sufficient cause' under Section 5 of the Limitation Act to justify condonation of delay. 2. Whether allegations that the delay was caused by the appellant's overseas agent (failure to file appeal despite instructions) can, standing alone, constitute sufficient cause for condonation. 3. Whether the appellant's inconsistent averments (different explanations before domestic and foreign courts) and conduct (receipt of certified copy, earlier communication by e-mail, contested trial with representation) preclude equitable indulgence in condoning delay. 4. Whether interim relief (stay of operation of the decree) is maintainable pending disposal of the condonation application when the condonation application itself is unsupported by satisfactory explanation. --- ISSUE-WISE DETAILED ANALYSIS Issue 1: Condonation of 765-day delay - legal framework Legal framework: Section 5 of the Limitation Act permits extension of prescribed period where 'sufficient cause' is shown. The Court applies a discretionary, liberal construction to 'sufficient cause' to advance substantial justice but weighs that against public policy and the need for finality; length of delay is not decisive, acceptability of explanation is the critical criterion. Precedent treatment: The Court relied on the principles in the Supreme Court authority emphasizing a liberal approach (accept explanation over mere length of delay) and other Supreme Court and High Court authorities that require satisfactory, bona fide, and reasonably detailed explanation; where explanation smacks of mala fides, gross negligence, or dilatory strategy, condonation is refused. Interpretation and reasoning: The Court examined documentary chronology: judgment dated 13.07.2015, certified copies made ready on 14.10.2015, e-mails of 23.10.2015 and 20.12.2016 received by the appellant, subsequent enforcement steps in the United Kingdom and adjournments, and the appellant's own filings. The Court found that the appellant had actual or constructive knowledge of the decree well before the impugned period of inaction and had not explained periods after receipt of communications. The Court noted that the appellant had been legally represented and had separately obtained certified copies, undermining pleas of ignorance or unfamiliarity with procedure. The Court also considered established guidance that each day's delay need not be explained in minute detail but material and convincing reasons must be placed on record; here the explanation failed that test. Ratio vs. Obiter: Ratio - where an appellant had notice of judgment (certified copy, e-mail communications) and was represented by counsel, unexplained prolonged inaction and lack of satisfactory, specific explanation (including failure to explain receipt of communications) do not constitute 'sufficient cause' under Section 5. Obiter - general remarks on judicial generosity versus public policy in limitation law, reiterating broad principles from precedent. Conclusion: The Court refused to condone the 765-day delay; the condonation petition was dismissed and the appeal rejected for want of timely filing. --- Issue 2: Reliance on agent's failure as sufficient cause Legal framework: Courts have held that mere delegation to counsel or agent and failure on their part is not per se sufficient cause; the principal must explain steps taken to ensure compliance and show due diligence. Precedent treatment: The Court applied authorities holding that blaming unnamed or unidentified agents/counsel without particulars, or failing to disclose steps taken to follow up, is inadequate; where papers were obtained and the principal had means to follow up, shifting blame is unacceptable. Interpretation and reasoning: The appellant's case attributed delay to the overseas agent's non-filing despite instructions. The Court observed that both principal and agent had separately obtained certified copies, counsel for the appellant had earlier participated in the litigation, and the managing director's witness statement acknowledged knowledge in mid-2015 and instruction to appeal. The Court found no credible explanation of what follow-up was done, no identification of the agent to whom responsibility was entrusted, and contradictory positions taken in different fora. Consequently, the agent-blame plea lacked particularity and bona fides. Ratio vs. Obiter: Ratio - unexplained failure by agent/counsel will not, without demonstrable steps of follow up and particulars, constitute sufficient cause to condone long delay. Obiter - commentary on the need for principals to be vigilant and the adage vigilantibus non dormientibus jura subveniunt. Conclusion: The plea of agent's default was rejected as inadequate to justify condonation. --- Issue 3: Effect of inconsistent averments and 'unclean hands' on condonation Legal framework: Equitable discretion to condone delay is exercised against the backdrop of parties' conduct; inconsistent statements, contradictions between affidavits and other sworn statements, or deliberate concealment undermine credibility and estop equitable relief. Precedent treatment: The Court relied on authorities that laches, vagueness, contradictions, absence of arguable defence, or wilful negligence weigh against condonation. Interpretation and reasoning: The Court contrasted the appellant's affidavit before this Court with affidavits/witness statements filed before the English court and found divergence in content regarding knowledge and actions taken. The Court characterized the appellant's stance as prevaricating and inconsistent, concluding the appellant had not come with clean hands. Given the decree was obtained after full trial and the respondent had accrued rights, the Court declined to exercise judicial generosity where explanations lacked quantitative and qualitative detail and bona fides. Ratio vs. Obiter: Ratio - inconsistent averments and conduct showing lack of bona fides negate entitlement to condonation. Obiter - reinforcement of principle that valuable rights accrued by decree should not be displaced by casual or insincere explanations. Conclusion: Inconsistencies and lack of bona fides were decisive against condonation. --- Issue 4: Maintainability of stay pending condonation Legal framework: Interim relief pendente lite (stay) is generally contingent upon a prima facie case and satisfactory explanation for delay when stay is sought pending condonation; a stay is not ordinarily granted if the condonation application lacks merit. Precedent treatment: The Court noted that stay cannot be lightly granted where the applicant seeks to forestall execution of a decree while failing to justify delay adequately. Interpretation and reasoning: Because the condonation petition was found to be defective and the appellant failed to make out sufficient cause, the related application for stay was dismissed as not maintainable. Ratio vs. Obiter: Ratio - stay pending condonation is not maintainable where the condonation application is devoid of satisfactory explanation. Obiter - none beyond application of settled principle. Conclusion: The stay application was dismissed along with the condonation petition; no interim protection was warranted.