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Himachal Pradesh High Court · body

2023 DIGILAW 523 (HP)

Cholamandalam MS GIC Ltd. v. Deepak Kumar

2023-12-13

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. By way of this application, a prayer has been made for condonation of delay in filing the appeal. As per the report of the Registry, the appeal is barred by 3 years, 4 months and 8 days of delay. 2. Reply to the application has been filed. 3. Learned counsel for the applicant has submitted that the delay in filing the application is bona fide and not intentional. By drawing the attention of the Court to the averments made in the application learned counsel has submitted that the reasons mentioned therein demonstrate that the delay in filing the application was not at all intentional and it was for reasons which were beyond the control of the applicant. Accordingly, he prayed that the application be allowed and delay in filing the appeal be condoned. 4. The prayer is seriously opposed by the learned counsel appearing for the non-applicant. They submit that the delay besides being inordinate, has gone totally unexplained in the application for the reason that the reasons assigned therein cannot be said to constitute a bona fide ground so as to condone such a huge delay. Accordingly, they have submitted that as the application is without any merit, the same be dismissed. 5. I have heard learned counsel for the parties and I have also carefully gone through the averments made in the application as well as the impugned order. 6. The award in issue was passed by the learned Motor Accident Claims Tribunal on 20.04.2019. The applicant was impleaded as respondent No.2 before the learned MACT. It was duly represented by its counsel and the claim was also contested by the applicant before the learned Tribunal. 6. The award in issue was passed by the learned Motor Accident Claims Tribunal on 20.04.2019. The applicant was impleaded as respondent No.2 before the learned MACT. It was duly represented by its counsel and the claim was also contested by the applicant before the learned Tribunal. Now in these circumstances, the averments, as have been made in the application that the appeal could not be filed within the period of limitation for the reason that the panel counsel of the Company did not intimate the applicant-Company about the passing of the award or that they became aware of the award only on 26.11.2021, when a notice was received by them in execution proceedings or that the file relating to the case was not traceable in the office of the applicant-Company or that the legal manager of the Company, who was looking after the location, resigned in the month of March, 2022 and there was no one at Chandigarh to take care of the cases till June 2022 etc., are no cogent reasons to condone the delay of more than 3 years and 4 months. 7. In fact, averments, made in the application, are demonstrative of the fact that the applicant has not acted with due diligence in the matter of filing the appeal. Even if this Court is to presume in favour of the applicant that after passing of the award by the learned Tribunal, this fact was not brought to the notice of the applicant-Company by the lawyer, who was representing the Company before the learned Tribunal, then also the explanation given by the applicant is not worth any credit. What transpired internally in the affairs of the Company cannot constitute a plausible reason from condoning a delay of more than 3 years and 4 months, during which time, rights has crystallized in favour of the non-applicants, qua whom the award attained finality after the expiry of the period of limitation. 8. Hon’ble Supreme Court in Postmaster General and others Versus Living Media India Limited and another, (2012) 3 SCC 563 , has been pleased to hold as under:- “26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.” 9. Recently in State of Madhya Pradesh and others Versus Bherulal, (2020) 10 SCC 654 , in which, the Hon’ble Supreme Court, while referring to the said judgment observed that the Supreme Court of India cannot be a place for the Government to walk in when they choose ignoring the period of limitation prescribed. It further observed that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. Till the statute subsists, the appeals/petitions have to be filed as per the statues prescribed. The Hon’ble Supreme Court also observed that a preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay was to be given a go-by. It further observed that if a case is good on merit, it will succeed in any case, but the bar of limitation can shut out a good case. This Court is of the considered view that the observation that has been made by the Hon’ble Supreme Court are applicable in the facts of this case also and the High Court can also not be a place for the Insurance Companies to walk in when they choose ignoring the period of limitation prescribed. As observed by the Hon’ble Supreme Court bar of limitation shuts out cases and even a good case. In this case, the award was announced by the learned Tribunal on 20.04.2019, in the presence of learned counsel for the applicant. The limitation for assailing the same was 90 days. The same has been assailed by the Insurance Company after expiry of more than 3 years and 4 months. In this case, the award was announced by the learned Tribunal on 20.04.2019, in the presence of learned counsel for the applicant. The limitation for assailing the same was 90 days. The same has been assailed by the Insurance Company after expiry of more than 3 years and 4 months. The reasons, which have been assigned in the application do not inspire confidence that despite due diligence, the applicant was not in the position to file the appeal either within the period of limitation or within some reasonable period thereafter. Insurance Company is not an ordinary rustic or illiterate litigant, unaware of the consequences of expiry of limitation. 10. Accordingly, in view of the above findings, as this Court does not finds any merit in the present application, the same is dismissed so also is the fate of the main appeal. Pending miscellaneous application(s), if any, also stand disposed of.