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2021 DIGILAW 107 (CAL)

Rajpath Contractors and Engineers Pvt. Ltd. v. State of W. B.

2021-02-11

I.P.MUKERJI, SUBHASIS DASGUPTA

body2021
JUDGMENT : 1. The Court : There are several hurdles which come in the way of the applicant in this application. 2. They pray for leave of this Court to put in the requisition to draw up and complete and to obtain a certified copy of the judgment and decree dated 5th May, 2008 made by a Division Bench of this Court. 3. This application itself is delayed by over 12 years. 4. Chapter XVI, Rule 27 of the Original Side Rules of this Court provides that a requisition to draw up and complete the decree and to obtain its certified copy has to be made by the decree holder within three days and by any other party within seven days from the date of the decree. Time may be extended by the Court on application. 5. Mr. Sen, learned senior advocate appearing for the respondent/state submits that in order to receive this application, the applicant is required to satisfy the Court with regard to the cause of delay. 6. The applicant has no explanation except that they thought that their advocate-on-record Mr. S.C. Roychowdhury, since deceased had put in the requisition for this purpose. Several criminal cases were pending against the directors of the applicant. Based on this belief, they did not investigate specifically whether such a requisition had been put in. 7. Mr. Sen, learned senior advocate appearing for the respondent/state cited the principle in Rafiq and Anr. v. Munshilal and Anr., reported in AIR 1981 SC 1400 that a litigant is not to be penalized for any fault or omission of his lawyer. However, he added that Salil Dutta v. T.M. And M.C. Private Ltd., reported in (1993) 2 SCC 185 : (1993 AIR SCW 1178) explained that principle by saying that it was applicable only if the litigant was a "rustic ignorant villager" and could not be applied in the case of a corporate body controlled by persons who were very well conversant with legal rights and procedures. 8. Reference may also be made to Hameed Joharan (Dead) and others v. Abdul Salam (Dead) By L.Rs. and others, reported in (2001) 7 SCC 573 : (2001 AIR SCW 3261) also cited by Mr. Sen. 8. Reference may also be made to Hameed Joharan (Dead) and others v. Abdul Salam (Dead) By L.Rs. and others, reported in (2001) 7 SCC 573 : (2001 AIR SCW 3261) also cited by Mr. Sen. In this case, the Supreme Court remarked that the "law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are vigilant and not those who are indolent." 9. With the passage of time, according to Mr. Sen, the rights of the applicant have been extinguished. 10. It is true that no real explanation has been provided in the application as to why the requisition for drawing up and completion of the decree and to obtain a certified copy thereof was not filed by the applicant's advocate-on-record. 11. Filing of this kind of a requisition is routine ministerial work carried out in the offices of the advocate-on-record who practise on the Original Side. The litigant does not have to sign this requisition. In most cases, the advocate-on-record initials it. Sometime, it is even initialled by the office clerk and dropped in the box available for such purpose in the department. 12. Even, if the applicant is a corporate body with well informed directors, having entrusted the matter to an advocate, in our opinion, they were not required also to oversee all these ministerial jobs. It was left to the advocate-on-record and it was his duty to do so. The applicant was well within his rights to presume that due action had been taken. If an enquiry was not made by the applicant as to whether the requisition was put in, we do not ascribe any negligence or laches on their part. The award as upheld by the decree is around Rs. 1.5 Crores with interest up to the date of the decree, as submitted. Out of that, the applicant has received Rs. 18 lakhs and odd. 13. For this ministerial lapse on the part of the advocate-on-record, we think that it would be highly unjust to deprive the applicant of the fruits of the decree, by not condoning the delay to make this application. 14. Hence, we condone the delay in making this application. 15. Now, the question is whether the rights of the applicant have been extinguished. 14. Hence, we condone the delay in making this application. 15. Now, the question is whether the rights of the applicant have been extinguished. In that event, even this leave granted by the Court would serve no purpose. 16. The decree is dated 5th May, 2008. The limitation for filing an execution application was till 5th May, 2020. Under the Limitation Act, 1963, the Court has got no power to extend this period. However, with the onset of the pandemic caused by the Covid -19 virus and the consequent imposition of the lockdown, the Supreme Court in exercise of its special jurisdiction under Article 142 of the Constitution of India made an order on 23rd March, 2020 in Suo Motu Writ Petition (Civil) No(s).3/2020 In Re v. Cognizance For Extension of Limitation states in these terms: "1. This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March, 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks." 17. Now on 15th March, 2020, the period of limitation to file the execution application had not run out for the applicant and they are entitled to take the benefit of this order of the Supreme Court. 18. Issue notice to all the Registrars General of the High Courts, returnable in four weeks." 17. Now on 15th March, 2020, the period of limitation to file the execution application had not run out for the applicant and they are entitled to take the benefit of this order of the Supreme Court. 18. In those circumstances, if a requisition is duly made by the advocate-on-record for the applicant, in the department for drawing up and completion of the decree dated 5th May, 2008 and to obtain a certified copy thereof within seven days from date, the department will accept the requisition. We do clarify that the time requisite for obtaining a certified copy of the decree would be only three days from the date of the decree made on 5th May, 2008 with the addition of the number of days taken by the department from this date, to make available the certify copy of the order. All calculations made by the applicant for the purpose of limitation, in the execution application shall be open to scrutiny by the executing Court. 19. We also rule that the applicant shall not to be entitled to claim any interest on the decretal amount after 5th May, 2008. 20. The application (GA No. 2 of 2020) is, accordingly, disposed of.