TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 2142
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....s through the 2nd Respondent for the requirement of the Petitioner for exporting the Sea Foods from India. During the course of business, the Petitioner had informed the 2nd Respondent that they are requiring 475 Cases of Whole Clean Squid Fish and further 736 Cases of Whole Clean Squid. Pursuant to the requirement expressed by the Petitioner, the 2nd Respondent had placed the Orders for purchasing of Frozen Whole Cleaned Squid Fish and with a packing of 1150 Cases, containing 20 Kgs. each as per Purchase Order dated 13.06.2007 for the value of US $2.50 per Kilogram with the 4th Respondent. As a matter of fact, the condition for shipment was on the basis of Letter of Credit payable in 85 days from the date of Bill of Lading. 3. The stand of the Petitioner is that he placed the order for Frozen Whole clean Cuttle Fish weighing 20 Kgs, each in 772 Cases with the value of US $ 0.90 per Kilogram and the consignment to be exported to the 3rd Respondent at Lisbon. He had originally placed purchase order with the 4th Respondent, who in turn transferred the Purchase Order to the 1st Respondent/Plaintiff. The terms of the Purchase order is payment by Letter of Credit payable within 85 days....
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....t and that the 1st Respondent has not taken any possible steps to take back the consignment, after the Port Authorities at Lisbon detected the consignment infected with cholera and as such, the entire stocks were destroyed only due to the negligent attitude of the 1st Respondent. 7. The Learned Counsel for the Petitioner brings it to the notice of this Court that the 2nd Respondent on behalf of the Petitioner had placed a Second P.O. for exporting 772 Cases of Whole Clean Frozen Cuttle Fish weighing about 20 Kgs in each Case for the approximate cost of US $ 0.90 per Kilogram. For the said P.O., Export was made in CFR basis and as per the terms of the P.O. Payment made by Opening Letter of Credit, payable within 85 days from the date of receipt of Bill of Lading. Moreover, the said consignment originally was placed with the 4th Respondent and without the knowledge of the Appellant, had transferred the order to the 1st Respondent. In any event, the 1st Respondent had executed the Purchase Order and consignment was delivered to the Port authorities and the said consignment was also delivered to the consignee. 8. It is to be noted that according to the Petitioner, the contract is not....
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.... appeal, along with an application to condone the delay in filing the above Appeal. 12. In pith and substance, the Learned Counsel for the Petitioner / Appellant submits that only after the notice was issued to the Petitioner's Principal by the Respondents, his Principal enquired about the matter with the agent in India and came to know that there is a Decree passed by this Court in C.S.No.9 of 1999 and only after the 1st Respondent issued notice claiming the decree amount and at that point of time only, he came to know about the exact details of the decree passed by this Court. Furthermore, if the delay of 765 days in preferring the present Appeal in OSA Sr.No.79476 of 2017 is not condoned, the Petitioner/Appellant will be put to serious and irreparable hardship. Also that, the delay in preferring the present Appeal in OSA Sr.No.79476 of 2017 is neither willful nor wanton, but due to the bonafide facts, as aforestated supra. 13. At this stage, the Learned Counsel for the Petitioner / Appellant cites the decision of Hon'ble Supreme Court in N. Balakrishnan V. M. Krishnamurthy reported in (1998) 7 SCC at Page 124 at Special Pages 127 and 128, wherein at Paragraphs Nos.9 to....
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....to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time." 14. Continuing further, in the aforesaid decision at Special Page 128 in Paragraph Nos. 12 and 13, it is observed as follows: "12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That 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 ....
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....suit in C.S. No. 9 of 1999 on the file of this Court was contested on merits and ultimately, the suit was decreed against all the Defendants jointly and severally as prayed for, with costs, on 13.07.2015. 18. The Learned Counsel for the 1st Respondent / Plaintiff takes a stand that the Petitioner / Appellant was represented by its Counsel and contested the main suit C.S.No.9 of 1999 and in fact, the Petitioner / Appellant through its Learned Counsel had applied for a certified copy of the Judgment and Decree in C.S.No.9 of 1999, on 13.07.2015. The said Certified Copy of the Judgment and Decree in C.S.No.9 of 1999 was made ready and received by the Petitioner / Appellant on 14.10.2015. As such, the Appellant was represented through its counsel and had requisite knowledge of the passing of the Judgment and Decree on 13.07.2015 itself. 19. The Learned Counsel for the 1st Respondent proceeds to take a plea that the 1st Respondent/Plaintiff later issued two notices demanding payment from the Petitioner / Appellant and the other Respondents in respect of the Judgment and Decree dated 13.07.2015, dated 23.10.2015 and 20.12.2016 respectively both sent by E-mail, which was duly received b....
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....ragraph Nos.2(f) and 2(g) of the Witness Statement of the aforesaid mentions as under: "2(f) In any event I heard nothing further from my agent in relation to this matter up until receipt of a letter from Tyrer Roxborough dated 1st August 2017. 2(g) Upon receipt of that letter I contacted my agent and his Solicitors to ascertain what the position was. I understand from my agent and his Solicitors that no actual appeal had been lodged. I confirmed instructions to them to lodge an appeal and on 10th October 2017 I received the attached letter from Indian Solicitors, Mr. Venugopal confirming that he had commenced the Appeal process in the Indian Courts". 24. The Learned Counsel for the 1st Respondent submits that the Managing Director of the Appellant, Mr. William Sydney Mooney has stated that the Appellant came to know about the Judgment of this Court passed in C.S.No.9 of 1999 dated 13.07.2015 only in July/August, 2015 from the Agent. Furthermore, the 2nd Respondent is an Agent of the Petitioner / Appellant. In fact, the said witness, Mr. William Sydney Mooney (Managing Director of the Appellant) also stated that he had instructed the Agent to prefer an Appeal and the Appeal sho....
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....pellant was represented by Learned Counsel Mr. R. Rajaramani as seen from the Decree dated 13.07.2015 in C.S.No.9 of 1999, while the Agent, namely, 2nd Respondent / 2nd Defendant was represented by Mr. M. Muthappan, Learned Counsel. 27. The candid fact of the matter is that the Petitioner / Appellant and its agent separately applied for certified copies of the Judgment and Decree passed in C.S.No.9 of 1999 dated 13.07.2015 and they were also obtained separately by the Learned Counsel for the Appellant and the 2nd Respondent. Therefore, the reasons assigned on behalf of the Petitioner / Appellant to condone the delay of 765 days in preferring the Appeal by placing blame on his agent is an unacceptable one . 28. The Learned Counsel for the 1st Respondent brings it to the notice of this Court that on 21.11.2017, this Court, allowed the application to accept the cause title by passing an order to the effect on 21.11.2017 and reserved the rights of the 1st Respondent / Plaintiff to raise this issue subsequently and in short, the Appellant had improved upon the reasons for the delay in present C.M.P.21784 of 2017 in OSA Sr.No.79476 of 2017. Suffice it to point out that the 1st Responde....
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....the Registry and refiling the appeal 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 bonafide 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 who Respondent 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 to ensure that its appeals were duly registered in the High Court. In this ....
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....iscretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered." 31. The Learned Counsel for the 1st Respondent seeks in aid of the decision of Division Bench of this Court between P.R.Ravichandran and others V. K. Ashwani kumar reported in 2015 SCC Online at Page 935 whereby and whereunder at Paragraph No.24 at inner para 10, it is observed as under: 24. "10. Similarly, the judgment of this Court reported in 2002(3) CTC 13 in between Sankaralingam and Anr.V. V.Rahuraman would also enlighten this Court regarding the points to be pondered in a case of condonation of delay. The relevant portion would run as under: This Court is inclined to point out the following facts and circumstances which would speak volume against the petitioners (i.e.) (a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances, (b) Vagueness of the affidavit and co....
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....n the same day. Thereafter, yet another mail was sent on 20.10.2016, that was also received by the Petitioner on the same day, but, there is no explanation as to why the Petitioner has not averred to these two E-mails that were received and kept quiet for more than two years in approaching this Court and thereafter, praying the Court to condone the delay. Even assuming the Petitioner is not aware of the Judgment and Decree, which was passed on 13.07.2015 even after the same was made ready on 14.10.2015, there is no justification on the part of the Petitioner to say that he had no knowledge at all after the communication was received by the Petitioner from the 1stRespondent herein. 36. 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 Co....