Judgment:
1. M/s. Sunshine Exporters, Bombay, have filed an appeal being aggrieved from the order passed by the Collector of Customs, New Custom House, Bombay. The said appeal was presented in the Registry on 31.8.1987. In column No. 3 of the Memo of Appeal "date of communication of the order appealed against" has been mentioned as 7.5.1987. In terms of the provision of Sub-section (3) of Section 129A of the Customs Act, 1962. the appeal has to be presented within three months from the date of the receipt of the order and as such the appeal should have been filed on or before 7.8.1987, but the same was presented on 31.8.1987.
2. Shri B.B. Gujral, learned advocate has appeared on behalf of the applicants. He has reiterated the contentions made in the application for condonation of delay. Shri Gujral has also relied on a subsequent application for condonation of delay in the form of an affidavit dated 11.2.1988 sworn before the Notary Public and has argued that the applicants had tiled a writ petition bearing No. 1954 of 1987 before the Hon'ble Bombay High Court on 22.6 1987 and the writ petition came up for hearing before Mr. Justice Pendse on 29.6.1987. In view of the alternative remedy available the writ petition was withdrawn vide order dated 29.6.1987 Shri Gujral, learned advocate has argued that the filing of an appeal or a petition in a wrong forum or on wrong advice is a sufficient cause. In support of his argument he has referred to a judgment of Orissa High Court in the case of State v. Manmohan Lal and Anr. in which the Hon'ble High Court had held that sufficient cause has to be liberally construed where an appeal was filed before a wrong forum. He has also referred to the judgment of the Supreme Court in the case of Shakuntala Devi Jain v.Kuntal Kumari and Ors. and theCollector, Land Acquisition Anantnag and Anr. v. Mst. Katiji Bibi and Ors.
were prevented by sufficient cause in the late filing of the appeal.
Therefore, the delay in the filing of the appeal may be condoned.
3. Shri A.S. Sunder Rajan, learned JDR has stated that the applicant has made an oral prayer for the withdrawal of the writ petition in the Bombay High Court. The order of the Collector was received by them on 7 5 1987 The applicants have to explain each and every day's delay beyond the period of limitation. Twenty-four days' delay in the present matter is on account of negligence. In support of his argument he has referred to the judgment of Supreme Court in the case ot Rum Lal and Ors. v.Rewa Coalfields Ltd . Shri Sunder Rajan has filed a copy of the office noting of the officer which clearly shows that instead of getting the writ petition dismissed, the applicants had withdrawn the same. At this point, Shri Gujral has argued that the noting given by the learned JDR is not borne out by the record and the writ petition was withdrawn on legal advice and further argued that if the extract filed by the learned JDR is accepted then he would like to cross-examine the officer. There is no negligence' on the part of the applicants and the bona fide of the applicants should not be doubted. He has pleaded that in the interest of justice, the delay in the filing of the appeal may be condoned.
4. We have heard both the sides and have gone through the facts and circumstances of the case. The facts as to the filing of the appeal after the prescribed period of limitation are not disputed. Relevant extracts from applicants' subsequent application for condonation of delay duly sworn before a Notary are reproduced below: 1. I say I have filed an Application for condonation of delay bearing No. C/COD/732/87-C in appeal bearing No. C/3004/87-C against Order-in-original bearing No.SIIB/1NF/114/86-AI Dated 29.4.1987 passed byS/10-50/87L-S1IB the Collector of Customs,S/10-M.Cell/Collr.40/87-L Bombay.
2. I further say that against the aforesaid order of the Collector of Customs, the appellants filed a writ petition bearing No. 1954 of 1987 before the Hon'ble High Court, Bombay on 22/6/1987. The said writ petition came up for hearing before His Lordship Mr. Justice Pendse who allowed withdrawal of the said writ petition on 29/6/1987, in view of alternate remedy available. 1 therefore say that from the date of filing the said writ petition till the date of withdrawal of said writ petition seven (7) days time has been taken.
Prior to the filing of the said writ petition, 1 had to take appointment with my Solicitors and after discussing the issues for about 3 days, writ petition was prepared. Thus 3 days time was taken by my Solicitors to draft the writ petition, 3. I therefore say that there is a delay of only 12 days from the date of receipt of Order as per details mentioned below:Date of filing Appeal before CEGAT : 31/8/1987Date on which appeal should have been filed (lastdate) from date of receipt of Order : 7/8/1987Therefore initial delay : 24 daysLess : 3 days time taken by Solicitors for drafting : -3 Writ PetitionDate of filing writ petition in High Court : 22/6/1987Date of withdrawal of writ petition : 29/6/1987Less : 7 days time taken in High Court : -7 --------Less: 2 days time taken for preparation : -2 of Appeal & Condonation Application before CEGAT -------- 12 4. I further say that as I was out of Bombay to my native place for my personal work from 6th August to 25th August, 1987 and, therefore, I could not sign the Appeal duly prepared by my Advocates. However the appeal was submitted to CEGAT on 31/8/1987 after my returning to Bombay in the last week of August 1987. Hence there is delay of 12 days. I also say that in advertantly delay of 5 days has been mentioned in the condonation Application which I pray tor amendment to be reads "12 days". The said draft amendment is annexed and marked hereto Ex. 'A'.
5. I further say that throughout the proceedings in High Court, I was vigilant m the matter till the proceedings reached final stage of hearing when on the advice of Honourable Judge on alternate remedy the Petition was withdrawn. Even after withdrawal of the Petition I had also say that in normal course the Certified copy is not applied for when the Petition is withdrawn and also as instruction were given to my Advocate/Solicitors to file appeal before Hon'ble Tribunal immediately. It was only when 1 came to know that Hon'ble Tribunal requires certified copy of the order of Hon'ble High Court, I applied through my Advocates on 17/12/1987 and I received the same on 31/12/1987 I, therefore, pray amended Condonation Application for delay of 12 days be accepted.
A simple perusal of the facts deposed in the application for condonation of delay will show that the writ petition was filed before the Hon'ble Bombay High Court on 22nd June, 1987 and the same was withdrawn on 29th June 1987. The limitation for the filing of the appeal had started to run from 8th May, 1987 and the last day for the filing of the appeal was 7th August 1987. Shri Gujral, the learned advocate, had referred to a judgment of the Orissa High Court in the case of State v. Man Mohan Lal and Anr.
(supra) where the High Court had held that "where a criminal revision was filed within time in the High Court and the High Court directed the party to come through the Sessions Judge, the party could not be penalised on the ground of limitation. Where the party prosecuted the proceedings before the wrong forum bona fide and in good faith, the delay caused by such proceedings may be condoned under Section 5." Shri Gujral had also referred to another judgment of the Supreme Court in the case of Shakuntala Devi Jain v. Kuntal Kumari and Ors. (supra) where it was held that: "Section 5 gives the Courts 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 ; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is inputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay in filing an appeal," Assuming that the applicant was bona fidely pursuing the writ proceedings in the Bombay High Court, if 7 days' time taken in the High Court and 3 days' time taken for the preparation of the writ petition is excluded, even then there is a delay of 14 days. The applicant in para No. 4 of his application for condonation of delay dated 17th February, 1988 has stated that he was out of Bombay to his native place for his personal work from 6th August to 25th August, 1987. Hon'ble Supreme Court in the case of Ram Lal and Ors. v. Rewa Coalfields Ltd. (supra) had laid down the following principles: In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal.
It is however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bow fides may fall for consideration ; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it.
Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14.
The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not.
The last day for the filing of the appeal was 7th August, 1987. The applicant has not explained the delay from 7th August to 31st August, 1987, The applicant was taking the things casually and there is negligence on his part. Hon'ble Supreme Court in the case of Union of India v. Tata Yodogawa Limited reported in 1988 (38) ELT 739 had held that: "The fact that the Government being impersonal taking longer time in filing the Appeals/ Petitions than the private Bodies or the individuals even giving that latitude there must be some way or attempt to explain the cause for such delay. There is no whisper to explain what legal problems in filing the Special Leave Petition arose," and hence the application for condonation of delay was rejected. The judgment of Mst. Katiji Bibi cited by Shri Gujral, the learned advocate, did not over-rule its earlier view in the case of Ramlal v.Rewa Coalfields Ltd. Taking into consideration the judgment of the Supreme Court and the facts and circumstances of the case, we hold that the applicant was not prevented by sufficient cause in the late filing of the appeal. The application for condonation of delay is rejected.
5. Since we have rejected the applicant's request for condonation of delay, the appeal is also dismissed being hit by limitation and we are not going into the merits of the same.