JUDGMENT
B.J. Shethna, J.
1. Heard learned Counsel Shri G.N.Shah for the Applicant – Corporation and Shri Tushar Mehta, appearing for the respondent No. 1. Respondents No. 5 & 7 are unserved and the remaining respondents are served.
2. Special Civil Application No. 7424 of 1992, jointly filed by 10 petitioners – present opponents, came to be allowed to the extent stated in the order passed by the learned Single Judge of this Court (Coram : Ravi R. Tripathi, J.) on 1.12.2000, which is as under :
1. The present petition is filed by as many as 10 petitioners, whose case is that they are the proprietors and/or partnership concerns carrying on business in the name and style mentioned in the cause title of the petition. It is further the case of the petitioners that they are appointed as retail outlet dealers of the respondent for making its produces. The controversy is in a very narrow compass. It is the case of the petitioners that under the policy of the respondents, the dealers who are not paying towards draft charges/cheque collection charges, an amount of Rs. 18.00 per KL from the rates of commission on MS and an amount of Rs. 8.00 per KL from the rates of commission on HSD shall be deducted on an uniform basis irrespective of the sale volume.
2. The grievance of the petitioners is that respondent Corporation has reimbursed the aforesaid commission of Rs. 18.00 per KL to those who have made payment by Bank draft, but have refused to those who have made payment by Banker’s Cheque. It is specifically contended in Para ; 11 of the petition that the petitioners who made payment through Banker’s Cheque had also to incur an expenditure to avail that facility from their banker. The difference between the terms, “Demand Draft” and “Banker’s Cheque” is set out in Para : 9 of the petition. When a Bank issues a cheque payable to the drawee, who is situated locally it is called banker’s Cheque and when the drawee is situated outside the city from the Bank which has issued the instrument, it is called demand draft. In view of the aforesaid position it is clear that if the petitioners have made payment by Banker’s Cheque and if they are not reimbursed the commission as claimed for and the reimbursement is given only to those who have made payment by Demand Draft, then it is discriminatory.
3. Without entering into any other controversy, this petition is decided on this short point only. If the petitioners have made payment by Banker’s Cheque, then they are entitled to the same treatment which is given to the persons who have made payment by demand draft.
4. In view of the aforesaid discussion, the present petition is allowed. The respondent Corporation is directed to treat the payment made by the petitioners by Banker’s Cheque at par with those who have made by demand draft. The respondent Corporation is also directed to give them similar treatment.
5. Learned advocate for the respondent submitted that a new policy has already come into force since 30.8.1993. The observations made hereinabove are applicable to the period prior thereto.
6. Mr. Mehta, learned Advocate for the petitioners submitted that a sit is a old matter and pertains to a period which is also very old, it would be in fitness of things, if the Court directs the parties to sit together and settle the accounts within a time bound frame. The request is reasonable. The parties are directed to sit together and settle their accounts within the period of three months from the date of receipt of writ of this order.
7. The petition is allowed to the aforesaid extent. Rule is made absolute. No order as to costs.
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(Ravi R.Tripathi,J.)
3. From the above order it is clear that it was more or less consent order. Inspite of it, surprisingly it was challenged by the present applicant – Corporation (original respondent in the main petition) before the Division Bench of this Court in LPA 460 of 2001, wherein following order was passed on 18.7.2001 by the Division Bench of this Court (Coram : Chief Justice Mr. D.M. Dharmadhikari (as he then was) and K.R. Vyas, J.)
Date of Order : 18.07.2001
ORAL ORDER
“Prima-facie, the order impugned of the learned Single Judge appears to be a consensual order on a short point. The learned Counsel appearing for the appellant now disputes this order and seeks liberty to approach the learned Single Judge with a suitable application for review thereof. For this purpose, he also prays for two weeks’ time. Prayer made is granted. However, it is made clear that without being influenced by pendency of this L.P.A. which has been adjourned on the request of the learned Counsel for the appellant, the learned Single Judge shall decide the application, if any filed by the appellant, on its merits. Put up on 1st August, 2001.”
4. We are fortified in our view that the aforesaid order dated 1.12.2000 disposing of Special Civil Application No. 7424 of 1992 was more or less consent order. However, it appears that thereafter the above LPA had not come up on the Board for admission. The present Applicant Corporation has thereafter approached the same learned Single Judge (Ravi R. Tripathi, J.) by way of Miscellaneous Civil Application No. 1301 of 2001 with a prayer to examine the issues mentioned in the said Application and stay the operation of the order dated 1.12.2000 passed by the learned Single Judge in Special Civil Application No. 7424 of 1992, without any formal prayer of recalling the order dated 1.12.2000 passed by the learned Single Judge or reviewing the said order. It was filed on 30.7.2001 wherein Notice was ordered to be issued on 31.8.2001 by the learned Single Judge. It appears from the order dated 21.1.2004 passed by the learned Single Judge in M.C.A. No. 1301 of 2001 that the matter was listed before His Lordship for the 34th time on 21.1.2004. Previously on number of occasion it was adjourned at the request of Shri Shah, learned Counsel for the applicant Corporation for taking instruction in the matter. However, on that day i.e. on 21.1.2004 the learned Single Judge dismissed the said M.C.A. and discharged the Notice issued by him. We would like to reproduce the entire order dated 21.1.2004 passed by the learned Single Judge dismissing the Miscellaneous Civil Application, which is as under :
“The present Misc. Civil Application was filed on 30th July, 2001. Notice was issued on 31st August, 2001. Since then the matter is listed 34 times. On number of occasions it was adjourned at the request of Mr. Shah, the learned advocate for the applicant for taking appropriate instructions in the matter.
1.1. The short question involved in the main petition was as to whether payment made by ‘Pay Order’ on one hand and by ‘Demand Draft’ on the other hand is similar in character and warrants a similar treatment or different in the matter of payment of commission. This Court after taking into consideration the contentions raised in the petition, the affidavit in reply and the affidavit in rejoinder, decided the matter by judgment and order dated 1.12.2000.
1.2. By the present Misc. Civil Application it is prayed that issues mentioned in this Application be examined and appropriate orders be passed. Today, when the matter is called out, Mr. Shah could not explain to this Court as to in what manner the Indian Oil Corporation (hereinafter referred to as “IOC”) is prejudiced if the payment is made by a party by ‘Pay Order’ instead of ‘Demand Draft’. The contention which is sought to be raised is that the IOC was differentiating in the matter of paying commission/ in the matter of reimbursing the expenses incurred by the party making payment as per the instructions given by the Govt. of India. This point was argued and was considered at the time of hearing the main petition and this Court having found no substance in the submissions had allowed the petition.
2. To reagitate the same by filing Misc. Civil Application cannot be permitted. Therefore, the present Misc. Civil Application deserves to be dismissed. As no case is made out for grant of any of the relief (s) as prayed in the application, the Misc. Civil Application is dismissed. It will not be out of place to mention that the present Misc. Civil Application filed in 2001 was allowed to remain pending for such a long because at one stage, the IOC, the applicant indicated that it is favourably considering, taking into consideration the time lag and the smallness of the amount payable to the original petitioners, so as to see that the controversy is put to an end. Thereafter, it was mentioned by the IOC that it is not having any record to verify the amount submitted by the original petitioners.
3. Mr. Tushar Mehta, the learned Advocate for the original petitioners submitted that the petitioners are ready and willing to file an undertaking to this Court that in case the amount is paid as per the Judgment and order of this Court dated 1.12.2000, if later on found to be in excess by IOC on tracing out its record, the same will be refunded. The offer made by Mr. Mehta is more than reasonable. This Court is at loss as to why a public undertaking is not able to accept and accede to such a reasonable offer/request. Only because the cost of litigation comes for public exchequer, it does not mean that the public undertaking should go on agitating issues on tenable/untenable grounds.
4. The Misc. Civil Application is dismissed. Notice is discharged. No order as to costs.”
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(Ravi R. Tripathi, J.)
5. Aggrieved by the aforesaid order dated 21.1.2004, passed by the learned Single Judge, dismissing the Miscellaneous Civil Application No. 1301 of 2001, the Applicant Corporation filed above LPA before this Court which is barred by a limitation of 24 days. For condoning the said delay the present Application is filed.
6. Learned Counsel Shri Shah for the Applicant Corporation prayed for condonation of delay of 24 days on the grounds mentioned in Para : 2 of this Application, which is as under : “The Applicant states that it is a Public Sector Undertaking having its head office at “Indian Oil Bhavan”, All Yavar Jung Marg, Bandra (East) Mumbai. The Applicant states that after the said order was passed by the Hon’ble Court, the Applicants had sought instruction and opinion whether an Appeal be preferred against the said Judgment or not. The Applicant states that due to genuine administrative difficulties the Applicants could not prefer the present Appeal within the period of limitation.”
7. It may be stated that no counter to this Application is filed by the present opponents. However, learned Counsel Shri Tushar Mehta for the opponent No. 1 vehemently submitted that he is not required to file any counter to the present Application for two reasons viz. (i) that the original order dated 1.12.2000 passed by the learned Single Judge disposing of their Special Civil Application No. 7424 of 1992 was a consent order and (ii) the grounds mentioned in the present Application in Para ; 2 cannot be said to be a cause, much less sufficient case, for condoning the delay of 24 days. Relying on the decision of the Hon’ble Supreme Court in the case of P.K. RAMCHANDRAN v/s. STATE OF KERALA, reported in AIR 1998 SC 2276, Shri Mehta vehemently submitted that Law of limitation may harshly affect a particular party but it has to be applied by this Court with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on such ground. There is considerable force in the submission made by Mr. Mehta.
In P.K. Ramchandran case (supra) an attempt was made to explain the delay by stating that “at that time the Advocate general’s Office was fed up with so many arbitration matters equally important to this case were pending for consideration as per the direction of the Advocate General”. On this, the Apex Court observed that this can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. Having observed the same the Hon’ble Supreme court in Para : 6 of the Judgment held that …”Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds.”
It may be stated that in P.K. Ramchandran’s case (supra) the High Court has condoned the delay which was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court having observed as aforesaid and held that the order condoning the delay by the High Court was not sustainable and accordingly it allowed the Appeal and set aside the order of the High Court and rejected the application for condonation of delay filed in the High Court and dismissed Miscellaneous First Appeal as time barred.
8. We have already reproduced Para ; 2 of the present Application in our earlier part of the order and we are of the considered opinion that the Applicants seeking instruction and opinion whether an Appeal be preferred against the said Judgment or not ? and administrative difficulties of the applicants for preferring the above Appeal within the period of limitation, cannot be said to be the cause much less sufficient cause, for condoning the delay of 24 days. Therefore, this Application is required to be dismissed.
9. We are conscious of the decisions of the Hon’ble Supreme Court taking the view that the Court has to do substantial justice and not the technical one, therefore, we have also considered the case on merits also, but on merits also we do not find any substance in main Appeal.
10. We have also reproduced the order passed by the learned Single Judge dismissing the main Special Civil Application No. 7424 of 1992 and the order passed in Misc. Civil Application No. 1301 of 2001 and also the order dated 18.7.2001 passed by the Division Bench of this Court in LPA No. 460 OF 2001. From the aforesaid orders, we are of the clear opinion that the order passed by the learned Single Judge disposing of the main petition was more or less a consent order. Inspite of it, later on the Applicant – Corporation filed LPA No. 460 of 2001 and then approached the learned single Judge. It is unfortunate that though the learned Single Judge, while disposing of the Misc. Civil Application, took lot of pain in observing that public undertaking is not able to accept and accede to such a reasonable offer/request and only because the cost of litigation comes from public exchequer it does not mean that the public undertaking should go on agitating issues on tenable/untenable grounds, the applicant – Corporation persisted with it. It clearly appears to us that some officer of the applicant – Corporation has made it a prestige issue and, therefore, litigations are filed resulting into simple waste of public money and the valuable time of this Court. Because of such frivolous matters this Court is not in a position to take up matters of other genjuine persons, who are really suffering. We also make it clear that even if the Appeal was in time then also we would not have entertained the same on merit as the main order was a consent order, which is not at all challenged in above main time barred Appeal.
11. In view of the above discussion, this Application fails and is hereby dismissed without cost with the hope that the matter may be now put to an end by the applicant Corporation. Rule is discharged with no order as to costs.
On the request of learned Counsel Shri G.N. Shah, office is now directed to place LPA No. 460 of 2001 for admission before this Court on 1.7.2004.