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M/S. Rum Plast Pvt. Ltd. Kanpur v. Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 906 of 2001 [2005] RD-AH 7165 (8 December 2005)


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Court no.55


M/S Rum Plast Pvt., Ltd. Kanpur           Applicant


The Commissioner, Trade Tax, U.P., Lucknow.                             Opp.Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 28th November, 2000 by which the Tribunal has rejected the appeal as barred by limitation.

Brief facts of the case giving rise to the present revision are that the applicant filed appeal under section 10 of the Act against the order of the Divisional Level Committee dated 6.8.1997 on 25.3.1998 beyond time by 128 days inasmuch as the order of the Divisional Level Committee was served on 19.3.1998. Appeal was filed along with an application under section 5 for condonation of delay. In the application, it was stated that there were two directors in the company, namely, Rishi Gupta and Uttam Jaiswal. Both Rishi Gupta and Uttam Jaiswal unfortunately and accidentally fell ill on 5th November, 1997 and remained confined to bed till 19th March, 1998 and, therefore, the appeal could not be filed in time. In support of the illness, two medical certificates of the two doctors, namely,  Dr. Ramesh Jha and Dr. Karmendra Kumar Mishra were filed along with the affidavit. On enquiry, the Assistant Commissioner (Assessment) found that both the doctors have acknowledged the issue of the medical certificates but has not maintained any register in this regard. It has also been observed by Assistant Commissioner (Assessment) that during the period 5th November, 1997 to 19th March, 1998, Rishi Gupta has filed monthly returns and has also moved applications for obtaining the Forms. Rishi Gupta filed an affidavit stating therein that he used to sign on blank monthly returns and letterheads for furnishing of monthly return and for obtaining the Forms. It has also been stated that during the period 5th November, 1997 to 19th March, 1998, he never appeared before the assessing authority. Tribunal, however, rejected the application on the ground that it appears to be unreasonable that both the directors had fallen ill between 5th November, 1997 to 19th March, 1998 and in the medical certificates both the doctors have mentioned two different diseases. It has also been observed that in view of the report given by the Assistant Commissioner (Assessment) there was no reasonable cause for the condonation of delay.

Heard counsel for the parties.

In my view, the order of the Tribunal is not sustainable. While rejecting the application for condonation of delay, the Tribunal has taken pedantic view while in the matter of condonation of delay a pragmatic and liberal view should be taken. In the present case, applicant has explained that the appeal was filed beyond time due to the illness of the two directors of the company and in support of the illness, medical certificates of the two doctors and affidavits have been filed. On enquiry, the Assistant Commissioner (Assessment) found that both the doctors have acknowledged the issue of the medical certificates , thus in my view rejection of the explanation of delay is not justified. Reasons given for the delay is sufficient and the delay is accordingly condoned.

The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).  Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

In the case of Collector, Land Acquisition Vs. Mst. Kati Ji and others, reported in 1987 (13) ALR, 306(SC), Hon'ble Supreme Court held as follows:

"The Legislature has conferred the power to condone delay by enacting section 5 of the 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 of 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 realized 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 threshold and cause of justice being defeated. As against this; when delay is condoned, the highest that can happen is that a cause would be decided on merit 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 hous's delay, every second's delay ? The doctrine must be applied in a rational, common sense and pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not 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 malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

6. It must be grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

In N. Balakrishnan Vs. M.Krishnamurthy, reported in (1998) 7 SCC, 133, the Apex Court explained the scope of limitation and condonation of delay, observing as under:

"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."

In Smt.Prabha Vs. Ram Prakash Kalra, reported in 1987 (Suppl) SCC, 338, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.

In Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil and others, reported in 2001 (44) ALR, 577 (SC), the Apex Court made a distinction in delay and inordinate delay observing as under :

"In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other wise will be a relevant factor so the case calls for a more cautious approach...."

In New India Insurance Co. Ltd., Vs. Smt.Shanti Misra, reported in 1976, AIR SC, 237, Hon'ble Supreme Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction.

In Briji Inder Singh Vs. Kanshi Ram, reported in 1917, AIR, PC, 156, it was observed that true guide for a Court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.

In Shakuntala devi Jain Vs. Kuntal Kumari, reported in 1969, AIR, SC, 575, the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In O.P.Kathpalia Vs. Lakhmir Singh, reported in 1984, AIR, SC, 1744, the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

In State of Haryana Vs. Chandramani, reported in 1996 SC, 1623, Hon'ble Supreme Court considered large number of its earlier judgments including Binor Bihari Singh Vs. Union of India, reported in (1993) 1 SCC, 572, M/s Shakambari and Co. Vs. Union of India, reported in (1993) Supp (1) SCC, 487, Warlu Vs. Gangotribai, reported in (1995) Supp (1) SCC, 37, Ramlal Motilal and Chhotelal Vs. Rewa Coalfields Ltd.,  reported in AIR, 1962, SC, 361, Concord of India Insurance Co. Ltd., Vs. Nirmala Devi, reported in AIR, 1979 SC, 1666, Lala Mata Din Vs. A. Narayanan, reported in AIR, 1970, SC, 1953, and held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner."

In the result, revision is allowed. Order of the Tribunal passed in defective appeal no. 9 of 1998 dated 10/28.11.2000 is set aside and the Tribunal is directed to decide the appeal on merits expeditiously after giving opportunity of hearing to both the parties.




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