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Harish Chander, Member (J)
1. The Director, Research & Development Organisation, A.D.E., Government of India, Ministry of Defence, C.V. Raman Nagar, Bangalore, has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Madras. The said appeal was sent by registered A.D. post and was received in the Registry on the 7th day of November 1988. In Column No. 3 of the Memo. of Appeal, the date of communication has been mentioned as 29-07-1988 and as such the appeal was received in the Registry after the expiry of limitation provided in terms of provisions of Sub-section (3) of Section 129-A of the Customs Act, 1962. The appellant has also filed an application for condonation of delay duly supported with an affidavit, sworn before a Notary Public. Shri C.M. Jaitly, Sqn. Ldr. has appeared on behalf of the applicant. He has reiterated the contentions made in the application for condonation of delay and has pleaded that the applicant was prevented by sufficient cause in the late filing of the appeal and the delay may be condoned. Shri M.K. Sohal, Ld. JDR who has appeared on behalf of the Respondent, pleaded that since the delay is just of 7 days and there does not appear to be any negligence on the part of the applicant he leaves it to the discretion of the Bench.
2. We have heard both the sides and have gone through the facts and
circumstanes of the case. The impugned order was received by the appellant on 29-07-1988. In terms of provisions of Sub-section (3) of Section 129-A of the Customs Act, 1962, the Appeal had to be filed on or before the 29th day of October, 1988. The Appeal was received in the Registry on the 7th day of November, 1988. Thus, there is a delay of 7 days. 29th October, 1988 happened to be Saturday and 30th October ’88 was Sunday, thus the earliest the appellant could have filed the appeal was 31st October, 1988. The appeal was sent per registered A.D. post and was despatched with the application for Condonation of delay. A photocopy of the postal receipt has been filed which shows that the appeal was sent by registered A.D. post on 03-11-1988. Hon’ble Supreme Court in the case of Collector, Land Acquisition Anantnag and
Anr v. Mst. Katiji and Ors. reported in 1987 (28) ELT 185 has held as under :-
“The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice – that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that :-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very thereshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is a cause would be decided on merits after hearing the parties.
3. ‘Every day’s delay must be explained’ does not mean that a pedantic approach should be made. Why not every hours’ delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression ‘sufficient cause’. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before its time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.”
The Tribunal in the case of CCE, Bhubaneswar v. Shree Durga Glass (P) Ltd., reported in 1986 (26) ELT 405 has held that where the appeal has been posted before the expiry of limitation the time taken by the postal authorities should be excluded… sufficient cause. We have also perused the papers. The Demand Draft No. 180849 dated 26-10-1988 drawn on State Bank of India, New Delhi was made much before the expiry of limitation. The appellant was vigilant all along. There is no negligence on the part of the appellant. Accordingly, we hold that the appellant was prevented by sufficient cause in the late filing of the appeal. The delay in the filing of the appeal is condoned.
3. Since we have condoned the delay, now we are taking up the application for grant of stay on merits. Shri CM. Jaitly, Sqn. Ldr. stated that the amount in dispute at Rs. 66,636.00 has been paid. Shri M.K. Sohal, Ld. JDR stated that since the amount has been paid, the Stay Application becomes infructuous.
4. We have heard both the sides. The amount at Rs. 66,636/- has already been paid and as such no order for grant of stay is called for. The Stay Application is dismissed as infructuous.