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2019 DIGILAW 370 (JK)

Union of India v. Godrej Agrovet Limited

2019-08-07

RAJESH BINDAL, SINDHU SHARMA

body2019
ORDER : Rajesh Bindal, J.—The prayer made by the applicants/appellants in the application is for extension of time granted by this Court for payment of costs to the respondent. Cost was imposed vide order dated 13.02.2015 while accepting application seeking condonation of delay. 2. To appreciate the contentions raised by learned counsel for the parties, it would be appropriate to notice certain facts in brief. 3. OWP No. 1209/2009 was filed by the respondent. The challenge in the writ petition was to the notifications dated 27.03.2008 and 10.06.2008 with further prayer that respondent should be allowed to avail the benefit of exemption from payment of excise duty in terms of notification dated 14.11.2002. There were bunch of writ petitions filed in this Court. Those were allowed vide a common judgment of the learned Single Judge dated 23.12.2010 with detailed order passed in OWP No. 470/2008 titled as Reckitt Benckiser (India) Limited vs. Union of India and others. Case of the respondent was not listed along with the bunch of petitions. It was taken up later on 04.05.2011 and was disposed of in terms of the detailed judgment in Reckitt Benckiser’s case (supra). 4. The applicant/appellant had challenged the common judgment of the learned Single Judge of this Court by filing bunch of LPAs. The same were pending in this Court. However, the appeal in the case in hand was filed belatedly along with an application seeking condonation of 928 days delay in filing the appeal. In the application filed for condonation of delay, arguments were heard and order was reserved. The same was pronounced on 13.02.2015. The application was allowed and delay in filing the appeal was condoned subject to payment of cost of Rs. 5000/- to the respondent on or before 27.02.2015. Cost was not paid within the time granted. Application was filed seeking extension of time for payment of cost, as ordered by this Court on 13.02.2015. 5. The application came up for hearing on 12.10.2015 and the same was allowed. The applicant was granted two weeks time to deposit the cost in terms of order dated 13.02.2015. As pleaded by the applicants, the amount was deposited with the Registry of this Court on 26.10.2015. The non-applicant/respondent being aggrieved against the order passed by this Court, extending time for deposit of cost, filed review petition bearing RPLPA No. 16/2015 which was allowed on 06.02.2018. As pleaded by the applicants, the amount was deposited with the Registry of this Court on 26.10.2015. The non-applicant/respondent being aggrieved against the order passed by this Court, extending time for deposit of cost, filed review petition bearing RPLPA No. 16/2015 which was allowed on 06.02.2018. The order dated 12.10.2015 passed by this Court, extending time for deposit of cost, was recalled. APLPA No. 44/2015 was revived. The applicant was permitted to file supplementary affidavit to which even the non-applicant was granted liberty to file objections. It is how the matter is before this Court. 6. Learned counsel for the applicant submitted that application seeking condonation of delay in filing the appeal came up for hearing before the Court on 10.02.2015 and the order was reserved. No specific date was given for pronouncement of the order. The case was not shown in the regular cause list, which is circulated to the Advocates mentioning the case in the list of cases fixed for pronouncement of orders. The case was shown for pronouncement of order in the supplementary cause list on 13.02.2015. As a result of this the applicants never came to know about the order passed by this Court on 13.02.2015, condoning the delay subject to payment of cost or the other conditions attached thereto. The counsel who represented the applicants failed to inform the department otherwise the amount of cost was quite meagre and could be deposited without failure. The applicants should not be made to suffer only on account of default of the counsel. The fact that other appeals filed against the bunch of petitions decided were pending at that time, was required to be considered. His submission is that the applicants were not to gain anything by delaying payment of cost imposed by this Court. 7. It was further submitted that in case the Court fixes the time for doing certain thing, time can always be extended. In support of arguments reliance was placed on the judgments of Hon’ble the Supreme Court in D.V. Paul vs. Manisha Lalwani, (2010) 8 SCC 546 , and Nashik Municipal Corporation vs. R. M. Bhandari and another, (2016) 6 SCC 245 and judgment of this Court in Syed Tassawur Jallali and another vs. Zamrooda (Mst.) and others, 2014 (3) JKJ (HC) 269. 8. It was further submitted that substantial amount of public money is involved. 8. It was further submitted that substantial amount of public money is involved. The issue is already pending before Hon’ble the Supreme Court. For mere technicalities, that too default in payment of cost of Rs. 5000/-, the State should not be made to suffer. 9. On the other hand learned counsel for the non-applicant/respondent submitted that considering the conduct of the applicants, they do not deserve any relief from this Court. In fact the applicants have not approached this Court with clean hands. They have wrongly stated the fact regarding the date of knowledge of the order passed by this Court. Certified copy of order was applied earlier as well. There were repeated applications filed. A perusal of the order passed on 13.02.2015 shows that the same was pre-emptory and conditional. As the applicants failed to deposit the cost, the default clause was operative. Application for condonation of delay stood dismissed without further reference to the Court. Section 151 of the Code of Civil Procedure does not apply once there are specific provisions to claim a relief under the Code of Civil Procedure. In fact, after dismissal of the application for condonation of delay and consignment of case file to records, this Court had become functus officio to entertain any application for extension of time. Even otherwise for invoking jurisdiction of this Court for grant of discretionary relief, bonafide have to be looked into, which are totally missing. The applicants cannot be permitted to just sleep over the matter and get up at their sweet will to comply with the order of this Court as and when they wished. The appeal itself was highly belated as the application was filed seeking condonation of 928 days’ delay for filing the same. In support of his arguments reliance was placed on the judgments of Hon’ble the Supreme Court in Mahanth Ram Das vs. Ganga Dass, AIR 1961 SC 882 , Green View Tea & Industries vs. Collector, Golaghat, Assam and another, (2004) 4 SCC 122 and P. R. Yelumalai vs. N. M. Ravi, (2015) 9 SCC 52 . 10. Heard learned counsel for the parties and perused the relevant referred record. 11. Facts of the case need to be noticed in brief, which have been mentioned in detail in the earlier part of this order. Bunch of petitions challenging notifications dated 27.03.2008 and 10.06.2008 were pending in this Court. 10. Heard learned counsel for the parties and perused the relevant referred record. 11. Facts of the case need to be noticed in brief, which have been mentioned in detail in the earlier part of this order. Bunch of petitions challenging notifications dated 27.03.2008 and 10.06.2008 were pending in this Court. Those were decided vide detailed judgment dated 23.12.2010 (Reckitt Benckiser (India) Limited’s case (supra). The case in hand remained pending, which was taken up later and decided on 04.05.2011 in terms of the aforesaid judgment. The bunch of petitions decided by the Single Bench of this court was subject matter of appeals filed by the revenue. However, there was delay of 928 days in filing the appeal in the present case. Arguments on the application for condonation of delay were heard and delay was condoned vide order dated 13.02.2015 subject to payment of Rs. 5,000/- as cost on or before 27.02.2015. The cost was not paid by the revenue and the reason assigned therefor was that the case for pronouncement of order on the application for condonation of delay was not shown in the regular cause list but was added only in the supplementary cause list which is not circulated to the advocates. Application for extension of time was filed, which came up for hearing on 12.10.2015 and the time for depositing of cost was extended by two weeks. Needful was done. However, the assessee being aggrieved of the aforesaid order having been passed without opportunity of hearing to it, filed review application which was allowed and the matter is again before this Court for consideration of the application filed by the revenue for extension of time for deposit of cost. 12. Issue which requires consideration by this Court is as to whether the time fixed by the court for doing any act can be extended beyond the period initially granted. 13. In Ganesh Prasad Sah Kesari and anr v. Lakshmi Narayan Gupta, (1985) 3 SCC 53 , Hon’ble the Supreme Court opined that where the court fixes the time, it always has the power to extend the same. Para 10 of the judgment is extracted below: “10. This construction also commends to us for the additional reason that where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so. Para 10 of the judgment is extracted below: “10. This construction also commends to us for the additional reason that where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so. Sec. 148 of the Code of Civil Procedure provides that where any period is filed or granted by the court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The principle of this section must govern in not whittling down the discretion conferred on the court.” 14. In D.V. Paul’s case (supra), Hon’ble the Supreme Court opined that where the court fixed any time for doing an act like making of a deposit the same can always be extended subject to making out a case to the satisfaction of the court. Relevant portion of the para thereof is extracted below: “32. It is not in the light of the above decisions open to the respondent to argue that a Court can fix time for the doing of an act like making of a deposit, in the instant case, but has no jurisdiction to extend the said period even when a case for such extension is clearly made out. The power to fix the time for doing of an act must in our opinion carry with it the power to extend such period, depending upon whether the party in default makes out a case to the satisfaction of the Court who has fixed the time. There is nothing in Section 148 of the CPC or in any other provisions of the code to suggest that such a power of extension of time cannot be exercised in a case like the one at hand.” 15. The issue was again considered by Hon’ble the Supreme Court in Nashik Municipal Corporation’s case (supra). In the aforesaid case, while referring to an earlier judgment of the Hon’ble Supreme Court in Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344 , it was opined that where the court fixes any time for doing an act, it always has power to enlarge the time in the absence of a specific provision to the contrary. v. Union of India, (2005) 6 SCC 344 , it was opined that where the court fixes any time for doing an act, it always has power to enlarge the time in the absence of a specific provision to the contrary. It was, further, held therein that even after amendment of Section 148 CPC, the court has the discretion to extend the time even beyond 30 days by invoking the powers under Section 151 CPC. 16. The judgment of Hon’ble the Supreme Court in P.R. Yellumalai’s case (supra), as relied upon by the learned counsel for the non-applicant, is distinguishable on facts. However, in that case as well, the opinion expressed is that the court can extend the time upon an application made by a party even after expiry of the time period originally fixed. 17. Now coming to the issue as to whether the applicant has been able to make out the case for extension of time, in our opinion, the litigant should not be made to suffer on account of any default on the part of his counsel. Definite stand taken by the applicant is that the order passed by this court did not come to its notice. Hence, meagre amount of cost could not be deposited in time. The moment the order came to their notice and as the time had already expired, application was filed seeking extension thereof and within the time permitted, the amount was deposited, which is lying with the Registry of this Court. It is further well known that official machinery moves at a snail’s pace and is not proactive in its approach. 18. Considering the aforesaid factual matrix, in our opinion, the application filed by the revenue seeking extension of time for deposit of cost deserves to be accepted. The amount of cost already imposed by this Court vide order dated 13.02.2015 had been deposited by the revenue with the Registry of this Court in terms of the order passed earlier extending the time. However, still in the facts and circumstances of the present case, in our opinion, the revenue deserved to be burdened with further cost of Rs. 50,000/-, to be paid to the non-applicant/assessee within a period of one month from the date of receipt of the copy of the order. The Registry is also directed to disburse the amount of Rs. However, still in the facts and circumstances of the present case, in our opinion, the revenue deserved to be burdened with further cost of Rs. 50,000/-, to be paid to the non-applicant/assessee within a period of one month from the date of receipt of the copy of the order. The Registry is also directed to disburse the amount of Rs. 5,000/-, deposited by the applicant earlier, to the non applicant/ assessee. 19. In view of acceptance of application for extension of time, IA No. 01/2018, filed by the respondent, seeking dismissal of appeal for non-compliance of order dated 13.02.2015, is dismissed.