TaxTMI 
TaxTMI 
2018 (11) TMI 1096
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsideration of the entire matter with regard to the issue of condonation of delay. 3. The contention of the petitioner is that the Respondent Bank was extremely negligent and has not explained each days' delay. It is contended that the explanation given by the respondent that there was non-availability of a constituted attorney in a particular Department could not be considered as a sufficient cause within the meaning of section 142 of the Act. It is further contended that there was a Regional Chief Executive available with the respondents even when the Senior Relationship Manager who was the constituted attorney had resigned and as such the complaint could have been filed through the Regional Chief Executive. It is contended that the respondent bank was highly negligent and as such the trial court erred in condoning the delay of 45 days in filing the complaint. 4. Per contra, it is the case of the respondent that the constituted attorney who was authorised and dealing with the subject account had tendered her resignation and it took some time in appointment of another person to substitute her and execution of the power of attorney in favour of that individual authorising him....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the complainant are believable and the application is duly supported by the affidavit of the Authorized Representative of the complainant and there is no reason to disbelieve the averments made by the complainant at this stage." 8. Section 142 negotiable instruments act reads as under: "142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).- (a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138." 9. It may be noticed that proviso to section 142 was added....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice." 17. In Collector (LA) v. Katiji [(1987) 2 SCC 107] this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09, para 3) "3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the notemaking, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause'. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits." (emphasis in original) 18. In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123], the Court went a step further and made the following observations: (SCC pp. 127-28, paras 9, 11 & 13) "9. It is axiomatic that condonation of delay is a matter o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss." ***** ***** ***** 20. In Vedabai v. Shantaram Baburao Patil [(2001) 9 SCC 106], the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. ....