Rajendra Prasad v. Kerala State Electricity Board and M/s C.S. Company and Jaganath Prasad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945** **R.F.A. NO. 131 OF 2023** **AGAINST THE JUDGMENT DATED 17.10.1998 IN OS 345/1987 OF THE I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM APPELLANT/4TH DEFENDANT:** **RAJENDRA PRASAD** **AGED 68 YEARS, S/O LATE SAHADEVEN, 4C, CENTURY TOWERS, NEAR YWCA, KOTTAYAM, (WRONGLY SHOWN AS 'C.S. SADANAM', KODIMATHA, KOTTAYAM, PIN – 686001.** **BY ADVS. VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K.** ## **RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 & 2:** - **1 THE KERALA STATE ELETRICITY BOARD REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, VAIDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695004.** - **2 M/S C.S. COMPANY, T.B. ROAD, KOTTAYAM, REPRESENTED BY ITS MANAGING PARTNER JAGANATHA PRASAD, PIN – 686001.** 2 R.F.A.No. 131 of 2023 - **3 JAGANATHA PRASAD, AGED 66 YEARS, S/O SAHADEVEN, RESIDING AT 'C.S. SADANAM', KODIMATHA, KOTTAYAM, PIN – 686001.** **BY ADVS.** **R1 BY LAKSHMI NARAYAN R.** **R2 & R3 BY NISHA JOHN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 11.10.2023, THE COURT ON 07.11.2023 DELIVERED THE FOLLOWING:** 3 R.F.A.No. 131 of 2023 ## P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------- R.F.A.No. 131 of 2023 ----------------------------------------------------------------Dated this the 7[th] day of November, 2023 ## ORDER/JUDGMENT P.G.Ajithkumar, J. C.M.Appl.No.2 of 2023 This is a petition filed under Section 5 of the Limitation Act, 1963. Delay of 8801 days in filing the appeal is sought to be condoned. 2. The petitioner is the 4th defendant in O.S.No.345 of 1987 before the Additional Sub Court-I, Thiruvananthapuram. The suit was decreed on 17.01.1998. The petitioner could not prefer an appeal in time. Defendant Nos.1 to 3 filed A.S.No.86 of 2003 in which the petitioner was the 2nd respondent. The petitioner filed I.A.No.2 of 2019 in the said appeal seeking an opportunity to ventilate his grievances, but that was not entertained. That appeal was dismissed on 16.06.2022. The petitioner moved the Apex Court by filing a Special Leave Petition challenging the appellate decree. But the same was dismissed. Thereafter, the petitioner got the advice that his remedy is to file a separate appeal and in such circumstances, he filed the appeal along with 4 R.F.A.No. 131 of 2023 the present petition to condone the delay. 3. The 1st respondent filed a counter affidavit vehemently disputing the veracity and acceptability of the reasons stated by the petitioner for condoning the delay. A similar counter affidavit is filed by respondent Nos.2 and 3. They - produced along with the counter affidavit, Annexures A2 A to A2E in order to substantiate that the attempt of the petitioner is to circumvent the liability due under the decree in an illegal way. 4. Heard the learned Senior Counsel appeared on instructions for the petitioner and the respective counsel appearing for the 1st respondent as well as respondent Nos.2 and 3. 5. The petitioner has stated several reasons to justify the delay of 8801 days in filing the appeal. Majority of such reasons are touching the merits of the case, which cannot ordinarily be considered to decide whether the reasons put forward by the petitioner to justify the delay are acceptable and sufficient. O.S.No.345 of 1987 was filed by the 1st respondent-the Kerala State Electricity Board for realisation of money. The 1st defendant was described as a partnership firm 5 R.F.A.No. 131 of 2023 and defendant Nos.2 to 4 as its partners. Transaction relating to a contract between the plaintiff-Kerala State Electricity Board and the 1st defendant-firm was the subject matter of the suit. Contention raised by the petitioner as reasons for condonation of delay, inter alia, are that he was not a partner of the firm, his signatures were forged right form execution of the contract, receiving summons in the suit, filing Vakalath and written statement in the suit, and also at every such stage of the suit. It is his contention that since he was working in Mumbai and Dubai all throughout, neither he had any information regarding the suit, nor had he received any summons in the suit. Only in 2012 he came to know about the pendency of A.S.No.86 of 2003 and immediately thereafter he filed I.A.Nos.2460 of 2012 and 2641 of 2012 before the trial court for setting aside the decree against him and to condone the delay. The trial court dismissed those applications. The petitioner filed O.P.(C) No.16 of 2014 challenging that order before this Court, which is still pending. Adding to that, he pleaded that he was under the impression that he would be able to present his case in A.S.No.86 of 2003, and when that 6 R.F.A.No. 131 of 2023 also failed, he preferred the present appeal along with the petition for condonation of the delay. 6. The learned Senior Counsel submitted on behalf of the petitioner that in the judgment in A.S.No.86 of 2003 itself it has been observed that for want of a separate appeal by the petitioner alone his cause could not be deliberated upon. It is further submitted that when the petitioner has a definite contention that his signatures were forged with a view to rope him in the transaction in question and since he has been attempting to invoke jurisdiction of various courts in order to ventilate his grievance including initiation of criminal prosecution, no negligence or laches can be attributed on his part. Therefore, the reasons stated by him are sufficient explanation for the delay. The learned Senior Counsel invited our attention to the observations of the Apex Court in Sheo Raj Singh (Deceased) through LRs. and others v. Union of India and others [2023 SCC OnLine SC 1278] that the 'explanation' and 'excuse' have different connotations and if a party is able to place before the court sufficient explanation for the delay, irrespective of the length of the delay, the delay can be 7 R.F.A.No. 131 of 2023 ## condoned. The relevant observations are the following:- “29. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an ‘explanation’ and an ‘excuse’. An ‘explanation’ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an ‘explanation’ from an ‘excuse’. Although people tend to see ‘explanation’ and ‘excuse’ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. An 8 R.F.A.No. 131 of 2023 ‘excuse’ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an ‘excuse’ would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts.” 7. In Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107] , in the context of Section 5 of the Limitation Act, 1963, the Apex Court held that, 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. 8. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] the Apex Court while summarising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short 9 R.F.A.No. 131 of 2023 duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants a strict approach whereas the second calls for a liberal delineation. 9. The delay in this case is 8801 days. Certainly the delay is inordinate. Hence in considering sufficiency of the reason for condoning the delay a strict approach is warranted. The petitioner shall establish that the reason he proffered is the explanation for the delay and not merely an excuse. Also, it is to be seen whether by condoning the delay, there is a possibility of causing prejudice to the respondents. 10. Annexure R2-A is a copy of the plaint in O.S.No.664 of 2008. That suit was filed by the plaintiff along with his two sisters. His brother, who is the 3rd respondent herein, was the defendant in that suit. That suit was filed to declare a Will executed by their father void and such other reliefs. In paragraph No.11 of the said plaint it was stated that C.S.Contructions was a family business. When the petitioner stated in the said plaint as early as on 31.10.2008 that such a concern existed as a family business and the same concern 10 R.F.A.No. 131 of 2023 is the 1st defendant in A.S.No.345 of 1987, the petitioner cannot resort to the excuse that he was unaware of the existence of such a firm. At any rate, from the assertions of the petitioner in his affidavit filed in support of this petition itself it is evident that he knew about A.S.No.86 of 2003 in the year 2012. He was a respondent in the appeal. He entered appearance before this Court in that appeal. Further, he has taken immediate steps for getting the decree set aside by filing I.A.Nos.2460 of 2012 and 2461 of 2012. It is seen that the said interlocutory applications were dismissed as early as in 2014 itself and he filed O.P.(C) No.16 of 2014 before this Court challenging that order. In such circumstances, the petitioner cannot feign ignorance about the proceedings in O.S.No.345 of 1987 or A.S.No.86 of 2003, at least, from 2012. When the appeal culminated in its dismissal, he admittedly had filed a Special Leave Petition before the Apex Court. That attempt was also unsuccessful. It was thereafter he filed the present appeal and the reason that he stated to file this appeal is the subsequent legal advice he has received. 11 R.F.A.No. 131 of 2023 11. This Court in Mallika v. Sree Mutharamman Temple Trust [2023 (5) KLT 830] held that subsequent legal advice cannot be accepted as a cause, much less any sufficient cause, to condone the delay in instituting a proceedings in terms of Section 5 of the Limitation Act, for if the subsequent legal advice is accepted as the cause to condone the delay in instituting a proceedings, the same would defeat the very object of the Limitation Act, viz., that every remedy should remain alive only till the expiry of the period fixed by the legislature which is a principle founded on public policy. Therefore, the plea of the petitioner that based on the advice he has received after dismissal of the Special Leave Petition filed before the Apex Court, only he could file the appeal is not a reason at all for condonation of the delay. None of the other reasons stated by the petitioner also is sufficient in the light of the law laid down in the decisions aforesaid to condone the delay of 8801 days. Considering the length of the delay, and that the matter in dispute in the suit being a money claim involving a huge amount which resulted in a decree after a long drawn litigation, the chance of prejudice to the 12 R.F.A.No. 131 of 2023 respondents if the delay is condoned is practically irreparable. In such circumstances, this petition can only be dismissed. The petition is accordingly dismissed. R.F.A.No.131 of 2023 Petition for condonation of delay, C.M.Appl.No.2 of 2023, is dismissed. Hence, the appeal is dismissed as barred by the law of limitation. Sd/- P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr 13 R.F.A.No. 131 of 2023 ## **APPENDIX OF RFA 131/2023** ## **RESPONDENT ANNEXURES** |**ANNEXURE R2**|**- A**|**TRUE COPY OF THE PLAINT IN O.S. NO.**| |---|---|---| |||**664 OF 2008 BEFORE HON'BLE SUB COURT,**| |||**KOTTAYAM**| |**ANNEXURE R2**|**- B**|**TRUE COPY OF THE ORDER IN I.A. NO.**| |||**2460**<br>**/**<br>**2012**<br>**OF**<br>**SUB**<br>**COURT,**| |||**THIRUVANANTHAPURAM**| |**ANNEXURE R2**|**- C**|**TRUE COPY OF THE ORDER DATED**| |||**09.02.2022 IN CC NO. 335 OF 2016 OF**| |||**HON'BLE**<br>**JUDICIAL**<br>**FIRST**<br>**CLASS**| |||**MAGISTRATE COURT, KOTTAYAM**| |**ANNEXURE R2**|**- D**|**TRUE COPY OF JUDGEMENT OF THE SUPREME**| |||**COURT IN CIVIL APPEAL NO. 4446 / 2006**| |**ANNEXURE R2**|**- E**|**TRUE COPY OF THE PAPER PUBLICATION**| |||**DATED 25.08.2003 IN RASHTRA DEEPIKA**|