1. This application is for condonation of delay in presenting the appeal CD. (Bom) Appeal No. 264/84. It came up for consideration on 2nd August, 1984. None represented the applicant on that date. But then after hearing Shri Krishan Kumar, the learned Departmental Representative and considering the averments made in the application, it was rejected on the ground that no cause much less sufficient cause was shown for the delay in filing the appeal between the period January and March, 1984. Subsequently by Misc. Application No. 138/84, the applicant prayed for restoration of the application for condonation of delay and also the appeal which was rejected as barred by time. This application came up for consideration before my learned Brother Shri Gaurishankar Murthy, Member (Judicial). The learned Member in his wisdom but after great pains thought fit to set aside the order dated 2-8-1984 and restored the application for condonation and also the appeal which was dismissed as barred by time. This order was passed on 28th September, 1984. Thereafter, Shri Madhu M. Patel applicant's learned Advocate made a further application on 18-10-84 and also filed an affidavit in support of this further application.
2. When the restored Misc. application No. 65/84 was taken up for consideration, Shri M.Y. Gupte, Advocate for the Respondent submitted that the Respondent Collector had filed a Reference Application against the order dated 28-9-1984 and the same is pending consideration. He therefore, prayed that the hearing of the restored application should be stayed pending consideration of the Reference Application. As the Reference Application was made in respect of an order passed on a Misc.
application, the Bench expressed doubt regarding its maintainability and in the circumstances, the request for stay of the hearing of the present application was not granted.
3. The application was heard on merit. Shri K.M. Desai learned Advocate for the applicant submitted that the Bench rejected this Misc.
application on 2-8-84 on the ground that the applicant did not satisfactorily explain the delay between January and March 26, 1984.
The delay had been satisfactorily explained by the Advocate of the applicant in his further application and affidavit filed in support of the further application. Shri Desai submitted that the learned Advocate for the applicant had committed a bona fide mistake in not intimating the applicant that he had six months time to file the appeal from 9th January, 1984 the date on which the applicant's disability ceased. Shri Desai contended that the applicant was of unsound mind till he appeared before a Criminal Court on 9-1-1984 and therefore delay in filing the appeal commenced from the date of which the disability had ceased.
Therefore, the appeal filed within a period of 3 months after cessation of disability was within time and in any case the delay for not filing the appeal during the period from 9-1-1984 and 26-3-84 has been satisfactorily explained. Mr. Desai contended that this Bench has ample jurisdiction to condone the delay and it was further urged by Shri Desai that the applicant is a foreign national. He was not acquainted with Indian law and he had to solely rely on the advice and guidance of his Counsel. There was total bona fide on the part of the applicant.
Even after leaving the Country he came back to India to face criminal trial and after the trial was over when he was reminded of his right to file an appeal against the order passed by the adjudicating authority, he entrusted the matter to his Counsel and as instructed by his Counsel filed an application for condonation of delay. The Counsel made a bonafide mistake in not informing the appellant's right to prefer an appeal within a period of 6 months from the date of cessation of disability. But then the Counsel wanted to make oral submission of this legal position at the time of hearing of condonation application.
Unfortunately, he could not be present on the date of hearing and his absence was considered justified by the subsequent order of the Member Shri Gaurishankar Murthy and as such the delay in presenting the appeal may be condoned.
4. Shri Desai took me through the further application filed by the applicant's Advocate. Shri Desai submitted that this further application was made at a great personal risk exposing himself to civil liability but to maintain and uphold high ethics of the profession.
Shri Desai also referred to the decisions of the Madhya Pradesh High Court, Madras High Court and the Supreme Court, the extracts of which were produced along with further application for condonation of delay filed by the Advocate Shri Madhu M. Patel. Relying on the said decisions, Shri Desai submitted that mistake of Counsel has been always considered as sufficient ground if the mistake was bonafide. Relying upon the judgment of the Supreme Court, Shri Desai urged that the expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice. By condoning the delay no prejudice would be caused to the State but the applicant's honour would be vindicated.
5. Shri Krishan Kumar, the learned Departmental Representative, however, vehemently opposed the application for condonation of delay.
He repeated the contentions urged by Shri Gupte that the order dated 2-8-84 was not an order for default of the party or the Counsel. It was an order on merit and therefore such an order cannot be set aside by another Member of the Tribunal under Rule 20 of the CEGAT (Procedure) Rules, 1982.
6. As regards the merit, Shri Krishan Kumar submitted that what had been restored was the Misc. Application 65/84 and what could be considered is that application and the party cannot be allowed to make any fresh application or urge fresh grounds or bring in supplementary facts in support of the earlier application. It was then urged by Shri Krishan Kumar that the first application for condonation was signed by the party as well by the Advocate Shri Madhu M. Patel. His further application was signed only by the Advocate and it is not even supported by an affidavit of the party. It was then submitted by Shri Krishan Kumar that in paragraph (2) of the application filed on 26-4-1984, it was stated that the appeal ought to have been filed within 6 months from the date of the receipt of the order but because the applicant was undergoing COFEPOSA detention and the applicant was released from COFEPOSA on 10-12-1982 and since the applicant was suffering from mental depression, nervousness, insominia with suicidal tendencies, he could not make the application. But then in the further application filed by the Advocate the Advocate has urged a ground different from the ground urged in the application which was signed by the party. The new ground urged was that the applicant has 6 months time to make an application after his legal disability had ceased and it ceased on 9-1-1984. Shri Krishan Kumar submitted that it is for consideration of the Bench as to whether the applicant should be believed or the learned Advocate should be believed as to the cause for not making an application within the prescribed time. It was also urged by Shri Krishan Kumar that if legal disability was the cause and if that has given extended period of limitation there was no delay at all and there was no need to make any application for condonation of delay.
It would have been sufficient if the applicant had stated in his appeal as to how his appeal was not barred by time. Shri Krishan Kumar further submitted that even according to the applicant's own statement he came to India on 9-1-84 and underwent criminal trial and therefore it could not be said that he was of unsound mind and there was legal disability.
Shri Krishan Kumar submitted that in the order dated 2-8-84, the cause shown for the delay had been considered and a lenient view had been taken, in that the certificate evidencing the illness was accepted.
With all that the applicant either alleged or established the reason for delay in filing the appeal during the period 9-1-84 and 26-3-84 and therefore the Bench rightly rejected the application for condonation of delay. Finally, Shri Krishan Kumar submitted that the present application and the ground urged therein shall not be taken into consideration and the application may be rejected.
7. In reply, Shri Desai contended that inconsistency arise if there are two versions. But then there are no two versions. He contended that in the application which was signed by the party the applicant had only stated the reasons as to why he could not file the application but he had not mentioned that he was advised by the Advocate that he had six months time from the date of cessation of legal disability. That fact was being brought to the notice of the Bench for the first time in the additional or supplementary application filed by Advocate Shri Madhu Patel. It was also urged by Shri Desai that it would not be sufficient if a sentence is added in the appeal that the appeal was not barred by time and how it was not barred by time shall have to be established by a separate application. Therefore, further application was filed. He reiterated his contention that the applicant, a foreign national who wants to vindicate his honour may be given an opportunity by hearing his appeal on merit.
8. I have considered the submissions made on both sides. It is true that the order of the Learned Brother Shri Gaurishankar Murthy was to restore the original condonation application. But then that fact by itself is insufficient to refuse a party to file a separate application or a separate affidavit supplementing the reasons. What is important in the matter of this nature is not procedural aspects but substantive justice. I therefore reject Shri Krishan Kumar's contention that I should not look into the further application and affidavit filed by the Advocate Shri Madhu M. Patel. I am entirely in agreement with the contention of Shri K.M. Desai that sins committed by the Advocate should not be visited upon his client. I further agree with his contention that the expression "sufficient cause" should receive liberal construction so as to advance substantial justice. I also share his anxiety that a foreigner should have an opportunity to vindicate his honour. But then one has to be satisfied as to the bonafide of the grounds urged for condoning the delay.
9. When an Advocate makes a statement from the Bar or when he files an affidavit, his submission and the affidavit should receive highest consideration. But then, if the submission or affidavit was made as a device to cover an ulterior purpose to save limitation in an underhand way, then such submission or affidavit cannot be made a basis for condoning the delay.
10. Before proceeding to consider the merit of the application, let me refer to the ratio of decisions cited by Shri Desai. In the case of Commissioner of Income-Tax, M.P. v. Khemraj Laxmichand, the Division Bench of the Madhya Pradesh High Court held that mistakes of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel is always a sufficient ground. It is always a question of fact whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.In Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi and Ors., the Supreme Court "That the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The court must see whether, in such cases, there is any taint of male fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under s. 5 of the Act is being considered.In Shakuntala Devi Jain v. Kuntal Kumari and Ors., Supreme Court observed : "Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles, the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay in filing an appeal." 11. Bearing in mind the principles laid down by the Madhya Pradesh High Court and Supreme Court, I proceed to consider the application for condonation of delay.
The first application for condonation of delay, viz. application received on 26-4-84, was signed by the applicant as well as by his Advocate Shri Madhu M. Patel. In paragraph 2 of the application it was stated : 'The appeal against the said order was to be filed within 6 months from the date of receipt of the said order. The applicant ought to have filed this Revision Application within 6 months from the date of the receipt of the said order i.e. 30th April, 1983. However, the applicant was undergoing COFEPOSA detention in Yervada Central Prison at Pune at the time when the order was received by the Applicant. The Applicant was released from COFEPOSA on or about 16th December, 1982. The applicant was suffering from mental depression, nervousness, insominia with suicidal tendencies and was therefore, undergoing medical treatment while in jail." After referring to the treatment taken by the Applicant in paragraph (4) of the application it was stated : "The Applicant came back to India on or about 9th January, 1984 with a view to attend his trial pending in the Court of Chief Metropolitan Magistrate at Esplanade, Bombay." "All the medical papers, reports and certificates hereto annexed will show that the Applicant was not mentally fit enough to understand, and, therefore, was prevented from filing the Revision Application against the said order in Appeal. The Applicant, due to this reason could not file the Revision Application in time. The Applicant, therefore, by this application prays for condonation of delay in filing this Revision Application on the ground of health and inability to understand the nature of things and due to his inability to seek the necessary reliefs available to him under the law." 12. In the further application, filed by the Advocate on behalf of the Applicant, among other things, it was stated : "I, as an Advocate of the Appellant, I was under the bona fide impression and belief that since the Applicant was disabled to pursue his right to appeal on the ground of his legal disability and that the said legal disability has ceased on or after 9th January, 1984, the Applicant is entitled to the period of limitation of 6 months from that date.
After my filing an appeal on or about 26th March, 1984 I filed an application for condonation of delay in filing the appeal by my application dated 26th April, 1984 under the bona fide impression that the Applicant is entitled to 6 months time period after his recovery from his legal disability which I came to know when the Applicant returned to India on 9th January, 1984. I got busy in the Applicant's trial which was virtually going on in Court day-to-day at CMM, Esplanade Court, viz. Case No. 102/CW of 1982 which was finally disposed of by a judgment of acquittal in his favour dated 4th May, 1984. I, therefore, respectfully submit that as counsel for the Applicant, I made an honest and bona fide mistake in calculation of the period of limitation with the result that his Appeal came to be filed on or about 26th March, 1984 by me.
I further respectfully submit that it was a bona fide honest mistake of counsel which has resulted in the delay in filing his appeal which I reasonably believed ought to be filed within 6 months after he has recovered from, his mental disability on or after 9th January, 1984.
13. Thus, in this application, the learned Advocate gives a reason as to why he filed the appeal on 26-3-1984. The reason given by the learned Advocate is that he bona fide believed that the applicant has six month's period to file his appeal, after the legal disability has ceased. I n other words, the learned Advocate honestly believed that the applicant could file the appeal six months after he had recovered from his mental illness. But then, in the application for condonation filed on 26-1-1984, it was not stated that the appeal was filed under the bona fide belief that the appellant had six months time from the date of cessation of legal disability. The said application was admittedly prepared by the Advocate who filed the further application.
In the further application, the learned Advocate does not explain as to why he did not incorporate his bona fide impression as to the period of limitation in the application filed earlier which was signed by his client as well as by himself, and more than that admittedly prepared by him. During the hearing Senior Advocate Shri K.M. Desai sought to explain this omission by submitting that the learned Advocate Shri Madhu M. Patel at the stage of preparation of the earlier application for the condonation of delay did not want to expose himself to civil liability, in that he did not advise his client that the client had six month's time from 9-1-84 to prefer an appeal. It was further submitted by Shri Desai it was only after the earlier application was rejected on 2-8-84 the learned Advocate decided to take the risk of exposing himself to civil liability with a view to maintain and uphold high ethics of the profession. This submission of Shri Desai is rather difficult to accept; firstly because, Shri M.M. Patel who made the present application did not assign any reason as to why he did not incorporate his bona fide impression about the period of limitation in the earlier application or in the present application. Secondly, it is not clear how Shri Patel would be exposed to civil liability if he had incorporated in his earlier application about his understanding of the period of limitation. In the circumstances, I am unable to accept the explanation offered during the hearing by Shri Desai. The ground now urged by the learned Advocate cannot be true, as apparent from the statement contained in the earlier application. I may repeat the first two sentences of paragraph (2) of that application : "The appeal against the said order was to be filed within 6 months from the date of receipt of the said order. The Applicant ought to have filed this Revision Application within 6 months of the date of the receipt of the said order i.e. 30th April, 1983." Thus in an unambiguous and clear terms, the applicant had stated that he was required to file his appeal within 6 months from the date of receipt of the order and he should have filed within 6 months from the date of receipt of the order.
14. As has been stated earlier, admittedly, this application was prepared by Shri Madhu M. Patel and it was signed by him also. One cannot accept Shri Patel who prepared the application to forget the ground now urged in his application while preparing the earlier application. If the ground now urged was the reason for filing the appeal on 26-3-84 then Shri Patel would not have drafted the earlier application in the manner in which it was drafted and he. would not have stated that the appeal against the said order was to be filed within 6 months from the date of the said order and that the appellant ought to have filed the Revision Application within 6 months from the date of receipt of the said order. These two statements run counter to the statement; now made by Shri Patel in his application.
15. Now it is not clear how Shri Patel himself could believe or could have an impression that the applicant would have 6 months' time to file his appeal from 9-1-1984. In the present application Shri Patel did not tell the grounds for his bona fide belief. The Customs Act nowhere provides for preferring an appeal after cessation of legal disability.
The only other law could be Limitation Act. It is the general understanding that the Limitation Act as such is not applicable to the proceedings under Special Acts. Therefore, prima facie Shri Patel cannot have an impression that the Limitation Act would apply. That apart, even the General Limitation Act would not come to the rescue of the applicant in this case. The enlarged period of limitation provided under Section 6 of the Limitation Act would be applicable to the institutions of suits and applications for execution of decrees only.
Section 6 is not applicable to appeals or to applications other than for execution of decrees. Therefore, Shri Patel cannot have an impression that the applicant had six month's time from 9-1-1984 to prefer appeal. Shri Patel's impression cannot be considered as bona fide because nothing could be considered as bona fide if it is not the result of due care and attention.
16. As a matter of fact, from the documents produced along with the appeal in the form of medical certificate it cannot be possible to come to a conclusion that the applicant was insane upto 9-1-1984. He might have been suffering from mental illness but from that one cannot conclude that he was insane. On this ground also, the belief of Shri Patel cannot be considered as bona fide.
17. Shri Desai had conceded that in the earlier application filed by the party and signed by the Advocate, sufficient cause had not been shown for the delay between 9-1-84 to 26-3-84. The new ground urged in the further application filed by the Advocate cannot be true, for the reasons already stated by me. It is significant to note that the new ground came to light after the earlier application was rejected. The observation of the Madhya Pradesh High Court and the Supreme Court aptly apply to the present further application filed by the learned Advocate. This application is merely a device to cover an ulterior purpose such as an attempt to save limitation in an underhand way.
18. As the applicant had not shown sufficient cause for the delay between the period 9-1-84 and 26-3-841 his application for condonation of delay is rejected.