TMI Blog2018 (3) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... out saying - There is no justification or explanation advanced, which could convince us that, in the interests of justice, the delay of 3 years and 192 days, on the appellant’s part, deserves to be condoned. No ground, whatsoever, justifying condonation of the inordinate delay of 3 years and 192 days, on the part of the appellant in preferring the present appeal is made out - petition dismissed on the ground of delay. - FAO(OS) 86/2017 & CM No. 11185/2017 - - - Dated:- 14-3-2018 - MR C. HARI SHANKAR J. Appellant Through: Mr. Darpan Wadhwa, Sr. Adv. with Mr. Aseem Chaturvedi with Ms. Chandni Anand, Adv. Respondent Through: Mr. Sanjeev Narula, CGSC with Ms. Anumit Chandra, Adv. (JUDGMENT) C. HARI SHANKAR, J. 1. We had, on 14th March, 2018, dismissed this appeal, stating that the reasons for the decision would follow. This judgement proceeds to record the reasons for dismissing the appeal. 2. The order, dated 4th October, 2013, which this appeal impugns, dismisses an application, filed by the appellant, in OMP 375/2013, under Order XXXIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC ), for being exempted from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for taking delivery of the coal and requesting for permission to sell it, and arrange to make payment of the amount received from third parties thereagainst. Despite certain relaxations given by the respondent, the appellant failed to lift the entire quantity of goods. The appellant, thereafter, issued post-dated cheques, to the respondent, against which de-pledge orders, for part quantity, were issued. All the cheques, issued by the appellant, however, were dishonoured, resulting in the respondent initiating, against the appellant, proceedings under Section 138 of the Negotiable Instruments Act, 1881. The said proceedings continue to remain pending, as on date. 5. The goods were discharged, by the appellant, by filing Bills of Entry in its name, and were stored at the port area at Kandla. On 5th September, 2009, the appellant again approached the respondent for de-pledging of the goods with a proposal for settlement of the outstanding liability. However, vide subsequent letter dated 19th November, 2009, the appellant informed the respondent that the goods had been destroyed in fire, for which they had filed a claim with New India Assurance Company Ltd. Consequently, the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: Review Petition 19/2015 IA No. 953/2015 After some arguments, Mr Uppal, learned senior counsel for the petitioner, on instructions seeks to withdraw the review petition as well as the accompanying application, with liberty to take recourse to an appropriate remedy. Since the petitioner had approached this court by way of a review petition, though after some delay, I am sure the appropriate forum will take into account the said circumstances, albeit after hearing the counsel for the respondent. Review petition and the application are, accordingly, dismissed as withdrawn, with liberty as prayed for. 10. It is purportedly on the basis of the liberty granted by this court, vide the above extracted order dated 30th October, 2015, that the present appeal came to be filed, by the appellant, on 21st October, 2017. 11. Admitting the fact that there has been a total delay of 3 years and 192 days in filing the present appeal, challenging the order dated 4th October, 2013 supra, CM 11185/2017, for condonation thereof, has been filed along with the present appeal, seeking to asseverate that the said delay was occasioned due to unavoidable circumstances , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment, vide order dated 22nd December, 2016. These, the appellant would contend, constitute sufficient cause to justify condonation, of the delay in filing the present appeal, and the entertainment, thereof, on merits. 12. This Court, on 28th April, 2017, issued notice only on the application filed by the appellant for condonation of delay (CM 11185/2017). Consequent thereupon, a response, to the said application, was filed by the respondent, in which, apart from pointing out that the delay in filing Review Petition 19/2015 remained unexplained, it was further submitted that, during the period in which the appellant had, by virtue of the litigations pending against it, and the orders passed thereon, been purportedly incapacitated from filing the present appeal, it had, in fact, been prosecuting other legal proceedings, viz. Execution Petition 289/2014, EFA (OS) 5/2015 and EFA (OS) 41/2015, with full vim and vigour. Orders passed, by this Court, in EFA (OS) 5/2015 and EFA (OS) 41/2015, on 6th April, 2015, and 5th November, 2015 respectively, have been filed, in support thereof, with the reply of the respondent. Mr Sanjeev Narula, learned Counsel for the respondent, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. 15. Not for nothing is the statute of limitation referred to as a statute of repose. Limitation, it is trite, does not eviscerate the right; it merely extinguishes the remedy. It serves to sheath the sword of Damocles and is, as such, imperative and unrelenting. Subject to the relaxations statutorily provided, periods of limitation cannot be ignored, thereby revitalising claims which have been put to sleep with the passage of time. Jurisprudentially, the concept of limitation is founded on public policy that an unlimited and perpetual threat of litigation leads to disorder and confusion and creates insecurity and uncertainty. [ V. M. Salgaocar Bros vs Board of Trustees of Court of Mormugao, (2005) 4 SCC 613] 16. As already noted hereinabove, the total delay on the part of the appellant, in preferring the present appeal, is 3 years and 192 days, which stands candidly admitted, by the appellant itself, in the present Miscellaneous Petition, filed by it for condonation thereof. That this delay is exorbitant, goes without saying. There is no explanation proffered, whatsoever, for the delay in filing Review Petition 19/2015, which cannot be said to be condoned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the passage of over 5 years since the passing of the said award, the respondent is still to reap the fruits thereof. 18. In order to balance equities, therefore, we queried, of Mr. Wadhwa, whether his client would be willing to deposit the awarded amount in this court, so as to secure its liability qua the respondent. Mr. Wadhwa, however, candidly stated that he could not offer any such concession and that, in fact, it was the financial incapacity of his client, to meet the said liability, that has resulted in his client having to suffer proceedings under Section 138 of the Negotiable Instruments Act, 1881, consequent upon the cheques offered by his client having been dishonoured. In such a scenario, we are unable to help the appellant. 19. We, therefore, hold that no ground, whatsoever, justifying condonation of the inordinate delay of 3 years and 192 days, on the part of the appellant, in preferring the present appeal, is made out. CM 11185 of 2017, for condonation thereof, is, therefore, dismissed. Resultantly, the present appeal would also not survive for consideration, and is dismissed on the ground of delay, without returning any findings on the merits of the controv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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