TaxTMI 
TaxTMI 
2014 (8) TMI 1067
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....impugned order, the High Court by stating that for the reasons stated in the applications and subject to payment of cost of Rs. 50,000/ - to the counsel appearing for the Respondents in those applications within one week, the delay of 9 days in filing the appeals and 1727 days in refiling the appeals was condoned and the applications were disposed off. (3) SIMULTANEOUSLY , the Regular First Appeals were admitted for hearing. It was also noted therein that since there were connected 22 Regular First Appeals already preferred by the Respondents in those miscellaneous petitions which were admitted for hearing and since the questions involved were common in both sets of appeals, the High Court directed the appeals in which delay was condoned to be tagged along with those appeals numbered as RFA No. 219 of 2008 and 21 other appeals for hearing on 29.04.2014. (4) AGGRIEVED by such condonation of delay in filing and refiling the appeals, the Appellant(s) have come forward with these appeals before this Court. Before us, Mr. Sinha learned Senior Counsel for the Appellant(s) contended that the High Court seriously erred in condoning the long delay of 1727 days in refiling the appeals ....
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.... appearing for the Respondents submitted that by condoning the delay of only 9 days in filing the appeals and the condonation of delay of 1727 days in refiling the appeals, no prejudice was caused to the Appellant(s) as against the very same judgment passed in the suit, the Appellant(s) themselves having preferred the first appeals which were already admitted and the appeals of the Respondents herein were also admitted and tagged along with those first appeals preferred by the Appellant(s). The learned Senior Counsel contended that Section 149 Code of Civil Procedure empowers the Court to condone payment of any deficit in the Court fee, either in whole or in part and, therefore, no fault can be found with the High Court in having condoned the delay though, the entire Court fee was paid by the Respondents much later and not at the time of first filing. The learned Senior Counsel also contended that this Court has made a distinction as between delay in filing the appeals and refiling and, therefore, when the reasons adduced by the Respondents were convincing and the High Court was satisfied with the reasons while condoning the delay in filing the appeals as well as their refiling and....
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....ed within the said period of limitation under the provisions of the Arbitration Act, by relying upon the amended Rule 5(3) of the High Court Rules, the period of limitation prescribed under the Arbitration Act cannot be varied on the ground that the refiling was belated as per the Rule and thereby the original filing Under Section 34 should be construed as belated in point of time which would create incongruities and, therefore, the reliance placed on the amended Rule 5(3) cannot be accepted. The learned Senior Counsel who appeared for the Appellant(s) fairly submitted that the Appellant(s) is not pressing the said submission and would be rest contended with the submissions on other grounds. In the light of the said categoric stand made by the Appellant(s), we do not wish to go into the said issue in the present proceedings and leave it open for consideration in any other appropriate case. It was also contended on behalf of the Appellant(s) that the claim of the Respondents that the appeals were filed with a delay of only 9 days cannot be accepted, in as much as the appeal papers were filed without any payment of Court fees and, therefore, it cannot be considered as proper filin....
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....eal is not accompanied by an application mentioned in Sub -rule (1) of Rule 3 -A? It must be noted that the Code indicates in the immediately preceding Rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said Rule and that is to return the memorandum of appeal to the Appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without an accompanying application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the Appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memor....
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.... delay of 9 days in filing the appeals was unintentional and inadvertent and was not in the control of the Appellant(s). Except for the above averments stated in the applications dated 28.05.2012, no other details were found in the said applications. The said applications were resisted by the Respondents. (10) IN the applications filed for condoning the delay of 1727 days in refiling, it was stated that after the judgment was pronounced by the trial Court on 30.05.2007, the counsel was instructed to file an appeal, that the appeal was drafted and was sent to the Respondents for signature by the counsel, which was sent back to the counsel for filing and that the counsel informed about the filing of the appeals on or about 06.09.2007 vide Diary No. 118619. According to the Respondents, it was made to believe that the appeals filed on its behalf were tagged along with the RFA No. 234 of 2008, filed by the Appellant(s) as against that part of the judgment which went against them. The other contentions were that there was a change of counsel towards the end of 2011 and that on 25.02.2012 all files were sent to the newly appointed counsel along with the papers relating to appeals o....
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....Senior Counsel appearing for the Appellant(s) also pointed out that while condoning such an enormous delay in refiling as well as delay of 9 days in filing the appeals, the High Court has not even stated that it was satisfied with the reasons adduced in support of the applications, apart from the fact that no reasons were stated for condoning the delay except imposing a cost of Rs. 50,000/ -. The learned Senior Counsel, therefore, contended that the approach of the Respondents in having moved the Court while filing the applications for condoning the delay in filing as well as refiling was a very casual approach and there was no bona fide in their action and, therefore, the order of the High Court called for interference. On the other hand Mr. Jayant Bhushan, learned Senior Counsel for the Respondents contended that the High Court having exercised its discretion while condoning the delay by imposing a heavy cost of Rs. 50,000/ -, this Court should not interfere with such a discretion exercised by the High Court. Learned Senior Counsel also contended that the delay was only 9 days in filing the appeals and that the delay involved in refiling should not be construed so very strictl....
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....papers within time. The Respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the Appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a matter of fact the appeal papers were filed without payment of any Court fee. This only affirms the stand of the Appellant(s) that there was no bona fide in the Respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non -grant of relief of specific performance. We also fail to see as to how the Respondent No. 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow -up action to ensure that its appeals were duly registered in the High Court. In this context the maxim Vi....
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.... the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the Respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. 17.... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non -deliberate delay, and in such circumstances of the case he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation ....
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.... which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go -by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that ....