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C. Lyall and Company Vs. B. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 16(A) of 1971
Judge
Reported inILR1973Delhi905
ActsLimitation Act, 1963 - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 79
AppellantC. Lyall and Company
RespondentB. Union of India and ors.
Advocates: C.K. Daphtary,; R.K. Lakhanpal and; S. Pappu, Advs
Cases ReferredKrishna vs. Chathappan
Excerpt:
(i) limitation act (1963) - section 5 & article 119-objection to filling of award-time runs from receipt of notice in respect of the notice for the filing of award-such notice need not be formal-delay-condensation of-consideration. ; that article 119 of the limitation act provides that objections to the award may be filed within 30 days of the receipt of notice in respect of the filing of the award and that the notice contemplated by the article need not be a formal written notice and it will be sufficient if the party who could file objection had notice of the filing of the award in the sense of having a knowledge that the award has been filed by the arbitrator. ; that where a party, who is already cognizant of the filling of award appears in court and applies for time to file.....h.l. anand, j. (1) this order will dispose of issue no. 1 which was ordered to be tried as a preliminary issue. the issue is in the following terms:- 'whetherthe objections are within time? if so, is the objector entitled to condensation of delay '?'it is obvious that there is a typographical error in the phraseology of the issue because on the issue, as at present worded, if the objections are within time, the question as to the objector's entitlement to condensation of delay would not survive. it further appears that the issue was intended to be: whether the objections are within time and if not, is the objector entitled to condensation of delay. i, thereforee, reframe the aforesaid issue as follows :- 'whetherthe objections are within time? if not, is tile objector entitled to.....
Judgment:

H.L. Anand, J.

(1) This order will dispose of issue No. 1 which was ordered to be tried as a preliminary issue. The issue is in the following terms:-

'WHETHERthe objections are within time? If so, is the objector entitled to condensation of delay '?'

It is obvious that there is a typographical error in the phraseology of the issue because on the issue, as at present worded, if the objections are within time, the question as to the objector's entitlement to condensation of delay would not survive. It further appears that the issue was intended to be: whether the objections are within time and if not, is the objector entitled to condensation of delay. I, thereforee, reframe the aforesaid issue as follows :-

'WHETHERthe objections are within time? If not, is tile objector entitled to condensation of delay?'

The issue has arisen in the following circumstances:

(2) The petitioner is a partnership firm and claim to have executed the work of strengthening of existing runway and construction of Taxi And Others A track and Apron at Bakshi-ka-Talab Lucknow, pursuant to agreement No.2/EE of 1962-63. As some disputes arose between the parties out of the said contract, Shri N.K.Aggarwal, respondent No. 2, was appointed an Arbitrator by the Additional Chief Engineer, Calcutta vide his communication, dated March, 28, 1966, to adjudicate upon the disputes.

(3) After hearing the parties the arbitrator made and published his award on February 2, 1971, decreeing the claim of the petitioner against Respondent No. 1 to the extent of Rs. 7,12,459.97.

(4) By an application under Sections 14 and 17 of the Indian Arbitration Act, the petitioner sought a direction for respondent No. 2 to file the original award along with all depositions and document filed by the parties before him and for the said award being made a rule of the Court. On the award and the related proceedings being filed in the Court by the Arbitrator, notice of the filing of the same was issued to respondent No. 1 and as the respondent No. 1 was described in the petition as ''Union of India through the Executive Engineer, Patna Aviation Division, C. P. W. D, Patna (Bihar)' notice as issued by this Court was sent to the office of the said Executive Engineer and was received by someone in his office in his absence on April 26, 1971. On May 17, 1971, when the matter cams up before the Court for further proceedings, Mrs. Shyamla Pappu appeared for the Union of India with Miss Bindra Thakur and the Court directed that the matter may come up on the 19th of May, 1971. On 19th of May, 1971, Mrs. S. Pappu again appeared with Miss Bindra Thakur for the respondent and prayed for time to enable her to file objections to the award, if any, after obtaining instructions from the respondent Union of India. By an order made on the said date, the Court allowed time to the respondent Union of India, to file objections subject to such exceptions as the petitioner may take. It was further directed that the objections be filed on or before the 6th of August, 1971, and the case be listed for 9th of August, 1971. Objections to the award in the form of an application under Section 30/33 of the Arbitration Act were eventually filed on behalf of the Union of India on August 6, 1971. Along with the objections Union of India filed an application under section 5 of the Limitation Act for condensation of delay in filing the objections. Inreply to the objections and to the Union of India's application for condensation of delay the petitioner raised the plea that the objections filed on behalf of the Union of India were barred by time and the Union 8HC D/73-13. of India was not entitled to the delay in filing the objections being condoned. The reply also raised various pleas on the merits of the objections filed by the Union of India. On November 29, 1971, the Court framed six issues. Issue No. 1 which was reproduced above related to the question of limitation and condensation of delay and was ordered to be decided as a preliminary issue.

(5) Parties filed affidavits in support of their respective contentions and the Union of India also examined Mr. B. P. Goel as its witness. No oral evidence was examined on behalf of the petitioner.

(6) I have heard Mr. Daphtry, who appeared for the petitioner and Mrs. S. Pappu, who appeared for the Union of India.

(7) The questions that require consideration are whether the objections to the award filed on behalf of the Union of India on August 6, 1971, were within time and if not, whether the delay in filing the objections should be condoned.

(8) It is not disputed that any party may file objections to the award within 30 days of receipt of notice of the Court in respect of filing of the award. It is, however, contended on behalf of the respondent Union of India, that no valid notice of the filing of the award had ever been received by the Union of India and that neither the receipt of the notice from the Court by someone in the office of the Executive Engineer in his absence on April 26, 1971, nor the appearance by the counsel in Court on May 17, 1971, and May 19, 1971, and the request made on May 19, 1971, for time to file objections on behalf of the Union of India could constitute sufficient notice of the filing of the award and that the Union of India would be deemed to have had notice of the filing of the award only on August 6, 1971, when objections to the award were filed along with the application under Section 5 of the Limitation Act. It is further contended that the application under Section 5 of the Limitation Act was filed by way of abundant caution.

(9) On the other hand it is contended on behalf of the petitioner that notice of the filing of the award need not be a formal or a written notice and need not be addressed to any particular functionary of the Union of India and that the receipt by Executive Engineer of the notice of the Court on April 26, 1971, constituted sufficient notice to the Union of India and that in any event when the counsel appeared for the Union of India, both on May 17, and May 19, 1971, specifically sought time on May 19, 1971, to file objections on behalf of the And Others A Union of India, Union of India had sufficient notice from the said dates of the filing of the award and the period for the filing of objections should, thereforee, be computed from the said dates. It was further contended that on the material placed on the records the Union of India had failed to make out a case for condensation of delay in filing objections to the award.

(10) The first question that falls for consideration, thereforee, is as to when the Union of India was served with the notice of the filing of the award.

(11) The first contention urged on behalf of the Union of India is that the notice of the filing of the award received in the office of the Executive Engineer on 26th April, 1971, could not constitute notice of the filing of the award by the Union of India as neither the person who received the notice nor the Executive Engineer was competent to accept notice on behalf oF the Union of India or otherwise bind the Union of India in relation to any proceedings. Mr. Daphtry who appears for the petitioner, however, relies on a notification being S. R. O. 351 dated January 25, 1958, issued in exercise of powers conferred by Rule 1 of Order 27 of the first schedule to the Code of Civil Procedure, whereby the Central Government appointed certain officers specified in the schedule to the notification who may sign plaints and written statements in suit in any Court of Civil jurisdiction by or against the Central Government and points out that the schedule to the notification specifically included under the head C. W. P. D., the Superintending Engineers and Executive Engineers which would include the Executive Engineer in question. He further contends that by virtue of the power conferred on the Executive Engineer by this notification to sign the pleadings in any suit by or against the Central Government the said Executive Engineer would be deemed to have been fully authorised to accept notice in respect of the proceedings in relation to which he could sign and verify the pleadings. He further contends that the Executive Engineer in question in whose office the notice had been received was the officer who was concerned with the execution of the contract out of which disputes arose and had been pursuing the proceedings before the Arbitrator on behalf of the Union of India.

(12) This contention of the Union of India must prevail. Order Xxvii of the Code of Civil Procedure provides for suits by or against the Government or public officers in their official capacity. Rule 2 A of this order provides that persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceedings shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government. Rule 3 provides that in suits by or against the Government instead of inserting in the plaint the name and description and place of residence; of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79 of the Code. Section 79 provides that in suit by or against the Government, the authority to be named as plaintiff or defendant, in the case of a suit by or against the Central Government shall be the Union of India. Rule 4 of the Order Xxvii provides that the Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. Rule 2(B) of the said order defines the term 'Government pleader' in relation to any suit by or against the Central Government as the pleader as Government may appoint whether generally or specially for the purposes of the said order. Section 80 of the Code provides that no suit shall be instituted against the Government or against the public servant in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered or left at the office of, in the case of a suit against the Central Government, the Secretary to that Government.

(13) It, thereforee, follows that a notice of any proceeding to the Central Government would be valid only if it was either sent to the Sec- retary to the Government or to any other officer who may be authorised to act for the Government in respect of judicial proceedings or to the pleader as defined in Rule 8(B) of the said Order. It is difficult to hold that any public servant who dealt with any proceedings which may have led to the institution of the suit against the Union of India would be competent to accept notice on behalf of the Union of India. It is equally difficult to hold that Union of India would be bound by notice received by various officers at different levels. In any event, in the absence of any provision of law or any rule of business or any statutory rule to the contrary it is not possible to hold that the Executive Engineer was empowered to accept notice on behalf of the Union of India and that the receipt of notice in his office constituted sufficient notice to the Union of India of the filing of the award in the present case. And Others

(14) Mr. Daphtry who appears for the petitioner, however, contends and rightly in my view that in any event though the Union of India would be deemed to have never received a formal notice in writing of the filing of the award there is ample material to indicate that the Union of India became aware of the filing of the award and the proceedings by the Arbitrator on or about 13th of May, 1971. and in any event on the 19th of May, 1971, when counsel for the Union of India appeared in the Court and specifically sought time on behalf of the Union of India to file objections to the award and time was allowed to the Union of India subject to just exceptions.

(15) Article 119 of the Limitation Act provides that objections to the award may be filed within 30 days of the receipt of notice in respect of the filing of the award and it has been held that the notice contemplated by the article need not be a formal written notice and it will be sufficient if the party who could file objections had notice of the filing of the award in the sense of having a knowledge that the award has been filed by the Arbitrator. Reference may be made in this connection to the decision of the Calcutta High Court reported as Bhola Nath Mallick Mahadev Mallick A.I.R. 1952 Cal 2261 .(1) It was held in that case that where a party who was already cognizant of the filing of the award appears in the case and applied to the Court for leave to examine the award and for time to file objections, service of notice of filing the award became unnecessary. In such a case even if the Court had failed to give notice, the date when he entered appearance in the proceedings will be deemed to be the date of the service of notice of the filing of the award and an application filed more than 30 days from such date will be barred under Article 158 of the Limitation Act.

(16) It is not disputed that counsel for the Union of india appeared both on the 17th and 19th of May, 1971, and on the 19th of May, 1971, the counsel specifically sought time on behalf of the Union of India to file objections to the award. Mrs. Pappu, however, contends that the appearance on both the occasions by her was not on the instructions of the Union of India but on the instructions of the Executive Engineer, pursuant to the receipt of the notice which had been earlier received in his office and that appearance by a counsel under misapprehension could not bind the Union of india and it could not be said that the Union of India had notice of the proceedings from the date of her appearance on these dates. This contention of the counsel is clearly unsustainable.

(17) In the first place, there is no material available besides the A statement of the counsel in support of the contention that the counsel had appeared on two occasions without any instructions from the Union of India and that the Union of India had no notice of the filing of the award.

(18) In the second place, this contention is clearly belied by the affidavit of Shri S.M. Jambholkar, Deputy Secretary, Ministry of Works, Housing, Urban Development, Health and Family Planning dated 6th of August, 1971, purporting to be objections to the application of the petitioner. Paras 10, Ii, 12 and 13 clearly make out that the Union of India became aware of the present proceedings on or about May 13, 1971, and that the counsel had appeared on 17th and 19th of May, 1971, pursuant to instructions from the Union of India. Paras 10 to 13 of the affidavit which are material are in the following terms :-

'10.I say that on May 12, 1971, the Chief Engineer on receipt of the reference from the Superintending Engineer and not being conversant with the proceedings before this Honourable Court under circumstances hereinafter set out referred the matter to the Ministry of Works, Housing. Urban Development, Health and Family Planning, Nirman Bhawan, New Delhi. Simultaneously, the Executive Engineer, Patna Division, Patna, p, was requested to proceed to Delhi and accordingly, the Executive Engineer aforesaid reached Delhi on the night of May 13, 1971. 11. I say that the Ministry of Works, Housing, Urban Development, Health and Family Planning which was also not conversant with the proceedings pending before this Honourable Court it referred the matter to the Ministry of Law, Department of Legal Affairs (W.H.&S.;) Section for guidance. 12. I say that the said Ministry contacted its counsel and requested the counsel to enter appearance in the proceedings before this Hon'ble Court on May 17, 1971 and take time for filing objections and in the meanwhile to advise the Ministry of the details of the aforesaid proceedings. 13. I say that the Ministry of Law was informed by its councel that the proceedings related to an award passed by Shri N.K. Aggarwal and that the application had applied to this Hon'ble Court to make the said award the rule of the Court. The counsel for the Union of India requested the Ministry for further instructions in the matter relating to the grounds of objections, if any, for the order sought by the applicant herein. Simultaneously the Ministry of Law through the Ministry of Works, Housing, Urban Development, Health and Family Planning, had to send for the entire record relating to the arbitration proceedings, as also the award. The details relating to the arbitration proceedings which culminated in the award of Shri N.K.Aggarwal was mostly within the knowledge of Shri B.P.Goel, Executive Enginneer, Patna Aviation Division, Patna who could reach Delhi only on the night of May 13, 1971, as aforesaid.'

(19) It is thus clear that the Ministry of Works, Housing, Urban Development and Family Planning, which was the Ministry concerned with the matter, had sufficient notice of the present proceedings on or about 13th of May, 1971, and in any event on May 19, 1971, when time was granted to the Union of India to file objections to the award.

(20) In this view of the matter, the Union of India was entitled to file objections within 30 days of May 19, 1971, taking that date as the date on which the Union of India became aware of the nature of the proceedings and had before it the records relating to the matter. The objections could accordingly be filed by the 18th of June, 1971, and as High Court was in vacation during the period, the objections could legitimately be filed on the date of re-opening i.e. The objections were, however, filed on the 6th of August, 1971, after a delay of about 28 days.

(21) The next question that arises is whether having regard to the allegations made by the Union of India in the application under section 5 of the Limitation Act and the material placed before the Court, the delay of about 28 days should be condoned.

(22) In this application being I.A.1257/71, under section 5 of the Limitation Act, seeking condensation of delay, the Union of India has set out the circumstances in which the objections to the award could not be filed earlier. The application is supported by an affidavit by Mr. Jambholkar, Deputy Secretary of the Ministry concerned and the Union of India has also examined B.P. Goel, Executive Engineer concerned as its witness in support of the plea for condensation.

(23) According to the application, the notice issued by the Court of the filing of the award reached the office of the Executive Engineer at Patna on April 17, 1971, when he was away from station and was on official tour along with the Superintending Engineer and returned to Patna on May 1, 1971. It is further stated that between the time of the receipt of the notice in his office and the date of his return to Patna the notice was put up by the office before the Assistant Engineer on April 28, 1971, who being ignorant of the proceedings referred the matter to the Divisional Accountant on the same date. The application proceeds to justify the delay until May 15 and 16, when the Executive Engineer held discussion with the superior Officer and attended the hearing in Court on May 17, 1971, and had further discussion regarding the questions arising out of the award with the officials of the Ministry as also counsel for the respondent. It is alleged that the Executive Engineer was suddenly called back to Patna on the evening of 17th of May, 1971, as emergent problems had arisen for providing facilities for accomodation, water supply and for making security arrangements at the Airports of Patna and Ranchi and as arrangements had to be made for providing security against hijacking of planes, and the Executive Engineer could not complete the discussion with the counsel and the Ministry of Law about the matter. It is further stated that the Executive Engineer could not return to Delhi as his presence was absolutely necessary to finalise arrangements at Patna in connection with the institution of Boeing services through Patna with effect from July 10, 1971, and also because arrangements had to be made for the members of the security force of C.R.P. on account of the refugees problems that arose due to the political developments in the then East Bengal and the Executive Engineer eventually could return to Delhi only on the 3rd of August, 1971, and started instructing the counsel for respondent to take further steps pursuant to the notice of the filing of the award.

(24) The affidavit of the Deputy Secretary in support of the application is a criptic one which merely states that he had read the application as also the application under sections 30 and 33 of the Act and being acquainted with the facts and circumstances leading to the disputes between the parties and having acquainted himself with the relevant records, he was in a position to say that the facts stated in paras I to 10 of the application were borne out from the official records relating to the case which was believed by him to be true and that paras 11 to 13 of the application were based on legal advice.

(25) Subsequently, the respondent sought and was granted leave to file an additional affidavit in support of the application for condensation of delay and consequently filed the additional affidavit of S.M. Jambholkar, Deputy Secretary , Ministry of Works, Housing. Urban Development, Health & Family Planning of October 25, 1971, in which it was alleged that the details relating to the arbitration proceedings which culminated in the award of the arbitrator were entirely within the knowledge of B.P. Goel, the Executive Engineer, that the Executive Engineer aforesaid could not complete discussions with the Officers of the Ministry as also the Counsel for the respondent on May, 17, 1971, as he was suddenly called back to Patna on the evening of May 17, 1971, inconnection with an emergency that had arisen following the necessity for providing facilities for accommodation, water supply and for making security arrangements at the Airports of Patna and Ranchi and for security of hijacking of planes. It was further alleged that the Executive Engineer was also busy with his work at Patna and Ranchi in the month of June and his presence was absolutely necessary to finalise arrangements at Patna in connection with the institution of Boeing Services through Patna with effect from July 10, 1971, as also in connection with the arrangements that had to be made for mem- bers of the Security Force of C.R.P. that had been raised to meet the emergency following the political developments in the then East Bengal. It was further stated that the Executive Engineer had been on official tour to Ranchi, Calcutta, and other places in the months of June, July and August 1971 to attend the special projects which could not have been deferred. A schedule of important works being then attended by the Executive Engineer as also the tour programme of the Executive Engineer for the month of June, 1971, are annexed with the affidavit and is marked 'A' collectively to it and it was stated that from the schedule of works and the tour programme it would be evident that the Executive Engineer could only return on the evening of 3rd August to Delhi when he started giving instructions to the counsel for the respondent in order to enable the respondent to take further steps pursuant to the notice of the filing of the award, it was further stated that the study of the relevant records and the preparation of the draft of the petitions by the junior counsel and the settlement of the matter by the senior counsel could only be completed by August 6, 1971, and the papers duly signed and verified on behalf of the respondent were received by the counsel on the said date when the objections to the award were filed in the registry of the Court.

(26) Annexure 'A' to the affidavit which runs into two sheets consists of two parts. The first page sets out details of important works attended to by the Executive Engineer between the period 16-6-1971 to 5-8-1971.

(27) The second page of the annexure which is marked OW1/1 purports to be the tour programme of the Executive Engineer for the period commencing June 6, 1971 to July 2, 1971.

(28) In addition to the aforesaid affidavit and the documents respondent examined the Executive Engineer himself as OW1 on January 13, 1972.

(29) In the course of his statement, the Executive Engineer stated that he was concerned with the arbitration proceedings, that the notice issued by this Court was received in his office in his absence, that the notice was put up to him on May 1, 1971 , on his return to Patna on which he went through the concerned papers and prepared a brief to be submitted to the Superintending Engineer whose headquarters were at Calcutta, which was submitted to the latter on May 5, 1971, who in turn forwarded it to the Chief Engineer, Calcutta, on May 7, 1971, that the Chief Engineer then referred the matter to the Ministry of Works, Housing and Supply, New Delhi, that he received orders on 12-5-1971, to go to Delhi to discuss the case with the Govt. counsel, that on arrival in Delhi on 13-5-1971, he tried to contract the Government counsel but he was reported to be out of Delhi on which he contacted Ministry of Works, Housing and Supply and was told to contact the Ministry of Law, which he did. On inquiry from the officials of the Ministry of Law he states that he placed the records relating to the case before them and that they instructed the witness to meet Government counsel in the High Court which he did. According to the statement, the witness attended the Court on 17-5-1971, at the hearing of the suit and admits that he had consultations with the Government counsel before attending the Court on that day. He proved his tour programme for the months of May, June, July and August, 1971, which were exhibited as OW1/1, OW1/2, OW1/3 and OW1/4 respectively. He further stated that he came to Delhi from Patna in the month of August for the purpose of assisting in the preparation of the objections, and he left Patna on August 2, 1971, and arrived in Delhi on August 3, 1971, and was able to instruct the counsel completely by the 5th of the month, but was unable to come to Delhi between May 17 and August 3, 1971, as he had been deputed to perform certain urgent duties in connection with measures to prevent And Others A hijacking of planes, making provisions for water supply for the C.R.P.F. at Mohkameh Ghat and arrangements to be made for starting Boeing service from Patna. He further stated that according to the marginal notes in the tour programme for the month of June, 1971, he came to Delhi on 7-6-1971, in connection with the inquiry commission appointed to conduct inquiry into the work carried out by Bharat Sewak Samaj and that he returned to Patna after that and came to Delhi only on 27-6-1971 to attend certain arbitration proceedings and went back to Patna on July 1, 1971. He further alleged that during this here mained busy with the arbitration cases and did not attend to any other official matters. He concluded by saying that he had been authorised to receive notices in arbitration matters on behalf of the Government.

(30) In his cross-examination he admitted that he had been appearing before the arbitrator on behalf of the respondent had been executing contracts on its behalf and the contract in the present case had been signed on behalf of the respondent by his predecessor. He further stated that he did not ask the arbitrator before whom he was to appear in Delhi in June 1971, to adjourn the case, but he stated that he spoke to the arbitrator on the telephone. He admitted, however, that in his absence, the Assistant Engineer was looking after the jobs entrusted to him and that apart from the dates on which, according to the tour programmes, he was out of the town he was in Patna. He was told the names of two counsel whom he was trying to locate, but could not find them as they had gone out of station. He further stated that he contacted the Deputy Secretary in the Ministry of Works, Housing and Supply, Mr. Jambholkar, and that he contacted Mrs. Shyamla Pappu in the High Court, but states, that he did not leave all the papers relating to the case with Mrs. Pappu, but took them with him to Patna but he admitted that the Government counsel told him that the objections had to be filed within 30 days. He further stated that since the time for filing the objections had already expired and he had instructed the counsel to apply for condensation of delay or extension of time but he did not think it necessary to inform the Superintending Engineer that the objections had to be filed within 30 days. He further stated that his jurisdiction as Executive Engineer extended to whole of Bihar, a part of U.P. and also a part of West Bengal and the functions he was to perform with regard to the prevention of hijacking of aeroplanes were at aerodromes situated at various places in the area within his jurisdiction and that he had to arrange for the making of the various Kinds of enclosures etc. which became necessary to prevent hijacking. He admitted that there were four Assistant Engineers working under him. at that time and that they were all gazetted officers. He further admitted that there were 16 Junior Engineers working under him at that time.

(31) The question that thus arises is whether on the aforesaid material it could be said that the Union of India have shown sufficient cause for not filing the objections within time and the delay of 28 days in filing the elections should or should not be condoned.

(32) Section 5 of the Limitation Act which provides for condensation of delay is in the following teims :-

'5.Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed thereforee, when the appellant or applicant satisfies the Court that he had sufficient cause for rot preferring the appeal or making the application within such period, Explanationn : The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.'

(33) It is by now well settled that where any proceedings have become barred by time, the bar of limitation confers a valuable right on the other side and before the Court condones the delay it must be satisfied that there was sufficient cause for not instituting the proceedings in question within the period allowed by law and it has been held that the defaulting party must explain delay of each day before it can be said to have shown sufficient cause.

(34) In the case of Ramlal and others v Rewa Coalfields Ltd. : [1962]2SCR762 , it was held by the Supreme Court that the expiration of the period of limitation prescribed for instituting any proceedings gives rise to aright in favor of the other side and benefit under the Law of Limitation to treat the matter as beyond challenge and that this legal right which had accrued to the litigant by lapse of time should not be light-heartedly disturbed. The Court further held that if sufficient cause to excuse the delay is shown the discretion was given to the Court to condone the delay and admit the proceedings and that the discretion had been deliberately conferred on the Court A in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. While dealing with this aspect of the matter, the Supreme Court approved the observations made by the Madras High Court in the case of Krishna vs. Chathappan (2nd 13 Madras 269) which are in the following words :-

'SECTION 5 gives the Court 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 which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.'

(35) It was further held in the aforesaid case by the Supreme Court that while considering the question of condensation of delay under section 5 of the Limitation Act, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties and that what the party was to show was as to why he did not file the proceedings concerned on the last date of limitation prescribed and that this would inevitably mean that the party will have to show sufficient cause not only for not filing the proceedings on the last day of limitation but to explain the delay made thereafter day by day.

(36) It may be relevant to consider if the statute of limitation makes any distinction between government and a private individual, and if, in the absence of such a distinction, the court while exercising its discretion to condone delay in a given case for sufficient reasons, would be debarred, as a matter of law, from drawing distinction between a private individual and Government. While it is well settled that the statute of limitation makes no distinction between Government and a private individual except when it specifically states to the contrary, there has been some controversy whether, while considering the provisions which confer discretion on the Court to condone delay in a given case for sufficient reasons, the Court was debarred as a matter of law,from drawing distinction between a private individual and Government.

(37) In the case of Union of India and another vs . Ram Kanwar and others , a Division Bench of the Punjab High Court took the view that the law of limitation operated equally for or against a private individual as also Government and held that no special indulgence could be shown to the Government which in similar circumstance would not be shown to the individual suitor, and if the ministries delay matters so much that the period of limitation already prescribed is not long enough for the Government or its agents. then the better course is to obtain amendment of the law through the Legislature rather than to make an application to the Court invoking its power for the condensation of delay. It further held that delays in Government offices, are, thereforee, no justification for invoking the power of the Court under Section 5 of the Limitation Act.

(38) In the case of K.R. Beri and Co. and others vs . Employees, State Insurance Corporation , a Division Bench of the Punjab High Court had occasion to consider the question and declined to go to the length to which the Bench in the Ram Kanwar's case went and held that there was nothing in the statute of limitation to debar a court, while considering the provisions which confer a discretion on the Court to condone delay in a given case, as a matter of law, from drawing distinction between a private individual and Government and observed as follows :-

'IT is obvious that a private individual has only to make up his own mind and is normally presumed to be aware of or familiar with all the relevant factors and aspects of his case, whereas in the case of Government, public interest has to be duly considered and, comparatively speaking longer time must, looking at things in a practical way, be required for enquiry and consideration before taking final decision and then acting on it. It may thus not be wholly unreasonable to state that a duration of time, which may be sufficient for a private litigant may not necessarily be held to be so in the case of Government. As at present advised, thereforee, I do not find it easy to persuade myself to subscribe, in an unqualified manner to the view (and I speak with utmost respect) that delay in Government offices can never, as a general rule, constitute a relevant consideration in determining the sufficiency of ca use for condoning delay; each case must depend on its own circumstances and the Court has to determine in a practical way as to how far a litigant has been reasonably diligent in prosecuting his case.'

(39) On an application of the principles enuntiated by the Supreme Court with regard to the manner in which discretion in condoning delay should be exercised to the facts and circumstances of the present case, even in the context of an allowance that may be made for the difficulties that may be peculiar to the Government administration, I am unable to hold that there was sufficient cause for the delay in filing objections. Although it would appear on a reference to a programme of the Executive Engineer for the period 8th July, 1971 to 30th August, 1971 (O.WI/3) that he was unusually busy in connection with his multifarious official duties, some of which had arisen on account of emergency conditions, and was touring extensively, it is hard to believe that inspire of assistance of a large team of subordinates, C he was unable to find even a few hours during the entire period, after the Union of India would be deemed to have normally come to know of the present proceedings, to give instructions to the counsel or to draw up a proper brief for the guidance of his subordinates or to depute any of his subordinates to give the necessary instructions to the counsel, and the concerned official in the Ministry. Even according to his tour programme during the relevant period he was in Patna between July 26, 1971 and August 2, 1971 and there is no Explanationn why during this period necessary steps could not be taken to prepare the necessary brief for the counsel or to take other suitable steps to provide instructions and material to the counsel or the other officials concerned with the matter. It appears that having been told that the objections had already become time barred the official concerned became complascent and someone somewhere was guilty either of negligence or of a sheer inaction and did not pay attention to the present proceedings that they deserved, and I am of the view that to condone delay in the present circumstances would be to put a premium on laxity in public administration, and to condone an act of inaction and negligence. I, thereforee, hold that the Union of India has failed to make out a case for the condensation of the delay in filing objections and the objections filed by the Union of India are, thereforee, rejected as being beyond time.

(40) In the result, in the absence of any reason why the award should be remitted to the arbitrator, I hold that the petitioner is entitled to the award of the arbitrator being made a rule of the Court, and I, thereforee, pass a decree in favor of the petitioner against the Union of India in terms of the award. The petitioner would also be entitled to costs and to future interest at 6 /o per annum, if the amount in question is not paid within four weeks from to-day.


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