- Bookmark
- Share
- CaseIQ
Baburao Deorao Wankhede v. Sewa Sahakari Sanstha And Anothers
Factual and Procedural Background
This writ petition arose from proceedings initiated by respondent No.1, Sewa Sahakari Sanstha, under section 9 of the Maharashtra Co-operative Societies Act before the Co-operative Court, Nagpur. The society joined eight opponents; respondent No.2 (Babasaheb Kinkhede) was made opponent No.7 and the petitioner was made opponent No.8. The society alleged that it owned a truck which was hired to respondent No.2 and that respondent No.2 misappropriated hire charges.
The Co-operative Court passed an award declaring that Rs. 25,950 should be recovered from opponents Nos.7 and 8 (i.e., respondent No.2 and the petitioner), failing which it should be recovered from opponents Nos.1 to 6. The text of the opinion contains two different dates for that award: at one place it is recorded as dated 31st March 1958 and elsewhere as 31st March 1968. Opponents Nos.1 to 7 appealed; the petitioner did not initially appeal.
The Maharashtra State Co-operative Appellate Court partly allowed the appeals by a common judgment (date not specified in the opinion extract). The petitioner filed a review petition on 13-7-1976 against the appellate court's order dated 8-7-1970; the review was rejected on 27-10-1977 essentially on the ground that the petitioner had not filed any appeal. The petitioner then filed Writ Petition No.249/1978 in this Court, which was rejected as premature but with liberty to file fresh proceedings after exhausting remedies under the Act; the Court observed that the petitioner could still file an appeal explaining the delay.
The petitioner filed an appeal on 13-2-1978 before the Co-operative Appellate Court, Bombay, which rejected the appeal by an order dated 16-7-1979 on the ground that it was time-barred by about ten years. The petitioner then moved this Court for quashing the appellate order dated 16-7-1979 and the award dated 31-3-1968 (as referred to in parts of the opinion).
Legal Issues Presented
- Whether the delay in filing the petitioner's appeal (said to be about ten years) should be condoned in the interest of substantial justice in light of the principles laid down by the Supreme Court on condonation of delay.
- Whether an application under section 91 of the Maharashtra Co-operative Societies Act was maintainable against the petitioner, given the petitioner's asserted lack of connection with the society (i.e., whether he was a member, servant, or otherwise connected).
- Whether the award and the appellate order could be sustained against the petitioner where the society's originating dispute/application did not plead any claim or foundation implicating the petitioner.
Arguments of the Parties
Petitioner's Arguments (Mr. Manohar)
- The petitioner first became aware of the award dated 31-3-1968 only on 9-4-1976 and thereafter continuously pursued remedies (by review petition and writ petition).
- This Court had earlier permitted withdrawal of a writ petition to enable exhaustion of remedies under the Co-operative Act and observed that an appeal could be filed even if time-barred provided delay was properly explained.
- Relying on the Supreme Court decision in Collector, Land Acquisition, Anantnag v. Mst. Katiji ((1987) 2 SCC 107; A.I.R. 1987 S.C. 1353), the petitioner urged that courts have discretion to condone delay to secure substantial justice and that this case constituted a grave injustice if dismissed on limitation grounds.
- Under section 91 of the Maharashtra Co-operative Societies Act, and specifically Explanation 2 to section 91(3), the petitioner argued that he was neither a member nor a servant of the society and therefore the society's application under section 91 could not be sustained against him.
- The originating dispute/application filed by the society did not contain any allegation against the petitioner; therefore any after-the-fact averments in evidence should be excluded and the award could not be sustained.
Respondent's Arguments (Mr. Belekar)
- The primary objection was that the petitioner's appeal was barred by time by about ten years and no adequate justification for such an inordinate delay had been provided.
- It was argued that the petitioner had participated in proceedings before the Co-operative Court and thus must have been aware of the award dated 31-3-1968, undermining the petitioner's claim of first learning of the award in 1976.
- On maintainability, the respondent contended that the petitioner was a servant of the society and therefore within Explanation 2 to section 91(3), making the application against him competent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107; A.I.R. 1987 S.C. 1353 | Principles on condonation of delay (section 5, Indian Limitation Act): courts should adopt a liberal approach to condone delay where sufficient cause is shown so that matters may be decided on merits and substantial justice is served. | The court relied on the Supreme Court's observations to conclude that, notwithstanding the apparent inordinate delay and weaknesses in the petitioner's explanation, the interest of justice required deciding the petition on merits rather than rejecting it on technical limitation grounds. |
Court's Reasoning and Analysis
The court proceeded in two principal strands of analysis, both based strictly on the material in the record as described in the opinion.
- On the limitation/condonation issue: The court acknowledged respondent's contention that the appeal brought by the petitioner was barred by about ten years and that the petitioner had participated in the Co-operative Court proceedings (which suggested awareness of the award). The court accepted that it was difficult to accept the petitioner's statement that he only first learned of the award on 9-4-1976. Nevertheless, the court found the case to be "squarely covered" by the Supreme Court's liberal approach to condoning delay (as stated in Anantnag v. Katiji). The court emphasized that refusing to condone delay can result in meritorious matters being thrown out at the threshold and that the interest of justice required the petition to be decided on merits rather than being dismissed on a technical limitation ground.
- On the substantive maintainability and sufficiency of the case against the petitioner: The court examined the application (dispute) filed by the society and noted that the application contained no allegation or foundation connecting the petitioner to the society. The court pointed to inconsistent findings in the Co-operative Court's judgment — at one place referring to an admission that the petitioner had been an employee (para 13) but later recording a categorical finding that the society had no connection with him as driver and never entrusted duties to him (para 22). Given that the society's dispute application was silent about any connection and there was no basis laid out to implicate the petitioner, the court held that the award could not be sustained against him. The court observed that it would amount to legalising injustice on technical grounds if the award were allowed to stand solely because the petition was time-barred.
- Balancing both strands, the court concluded that even accepting the delay, the interest of justice and the absence of foundational pleadings or consistent findings implicating the petitioner required quashing the award and the appellate order insofar as they affected the petitioner.
Holding and Implications
Holding: The petition was allowed in respect of the petitioner. Specifically, the court quashed and set aside the award dated 31-3-1968 (as referred to in the opinion) and the appellate order dated 16-7-1979 insofar as they dealt with the petitioner. The Rule was made absolute and there was no order as to costs.
Implications: The direct effect of the decision is that the petitioner is relieved of the liability imposed by the Co-operative Court's award and by the Co-operative Appellate Court's order insofar as they concerned him. The court expressly relied on established Supreme Court principles on condoning delay to justify deciding the petition on merits, but the opinion does not purport to lay down a new legal precedent; rather it applies the cited Supreme Court authority and concludes that, on the particular facts (notably the absence of any pleading against the petitioner and inconsistent findings), sustaining the award would be an injustice. No broader rule of law beyond the application of the cited precedent was announced in the extract provided.
Rule made absolute.
Qazi, J.:— This Writ Petition has arisen out of the proceedings initiated by the respondent No. 1 Sewa Sahakari Sanstha, under section 9 of the Maharashtra Co-operative Societies Act, before the Co-operative Court, Nagpur, 8 opponents were joined as parties by the respondent No. 1 (Sewa Sahakari Sanstha). Respondent No. 2 Babasaheb Kinkhede was joined as opponent No. 7 and the petitioner was joined as opponent No. 8. It was contended that the respondent No. 1 Society owned a truck and that it was given to respondent No. 2 on hire but Babasaheb Kinkhede, instead of paying the hire charges misapproriated the amount of the society. The Co-operative Court passed an Award vide order dated 31st March 1958 declaring that the amount of Rs. 25,950/- should be recovered from the opponents Nos. 7 and 8 i.e the respondent No. 2 and the petitioner, failing which the amount shall be recovered from the opponents Nos. 1 to 6. The award was challenged by way of appeals by opponents Nos. 1 to 7. The petitioner did not challenge the award. The appeals were partly allowed by the Maharashtra State Co-optrative Appellate Court by its common judgment dated ??? inasmuch as opponents Nos. 7 and 5 were exonerated. The petitioner filed a review petition on 13-7-1976 before the Maharashtra State Co-operative Appellate Court, challenging the order dated 8-7-1970 passed by it. The review came to be rejected by the appellate Court vide order dated 27-10-1977. The review was essentially rejected on the ground that the petitioner did not file any appeal. The order was challenged by the petitioner by way of Writ Petition No. 249/1978 before this Court. The writ petition was rejected with liberty to enable the petitioner to file fresh petition, if necessary, after exhausting remedies available under the Act. It was further observed by this Court “that the petitioner can file an appeal even now explaining delay as it appears that he had good grounds for not filing independent appeal in time.” The writ petition came to be rejected as premature”. The appeal was filed by the petitioner on 13-2-1978 before the Co-operative Appellate Court, Bombay. The appellate Court rejected the appeal vide order dated 16-7-1979. The appeal came to be rejected essentially on the ground that it was barred by time by about 10 years and it is under these circumstances that this Court has been moved for quashing the order dated 16-7-1979 as well as the award dated 31-3-1968.
2. Mr. Manohar contended that the petitioner came to know about the Award dated 31-3-68 for the first time on 9-4-1976 and thereafter he was continuously pursuing his remedy some time by way of review petition and some time by way of writ petition. He further contended that this Court allowed him to withdraw the writ petition so as to enable him to exhaust all remedies available under the Co-operative Act. This Court also made observation that the appeal could also be filed even though it was barred by time provided the delay could be properly explained. Having regard to all these facts Mr. Manohar contended that it would be too harsh to reject his request on the ground of limitation. He has invited my attention to the decision of the Supreme Court of India reported in (1987) 2 SCC 107 : A.I.R 1987 S.C, 1353 1(Collector, Land Aquisition, Anantnag v. Mst. Katiji). He has particularly relied on the observations of the Supreme Court made in para 3 of its judgment. The material portion thereof reads as under:—
“The legislature has concerned the power to condone delay by enacting section 5 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 Court 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 principal as it is realized that:—
1. Ordinarily a litigant does not stand to benefit by lodging an appeallate.
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 merits after hearing the parties.
3. “Every day's delay must be explained” does not mean that a pedantio approach should be made. Why not every hour's delay, every seconds 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 injustice and is expected to do so.”
(Emphasis supplied).
3. Relying on the aforesaid decision Mr. Manohar contended that the present case is a case of grave injustice and that cannot be allowed to perpetuate by throwing out the petition on the ground of limitation. Mr. Belekar appearing for the respondent contested the present writ petition essentially on the ground of limitation. According to him, the appeal which was filed by the petitioner before the Co-operative Appellate Court was barred by about 10 years, and for such an inordinate delay no proper justification is forthcoming. According to him, the petitioner participated in the proceeding before the Co-operative Court and therefore, it could not be said that he was not aware about the award passed against him on 31-3-1968. It cannot be said that this contention of Mr. Belekar is wholly without substance. It is difficult to accept the contention of the petitioner that he came to know for the first time about the award dated 31-3-1968 on 9-4-1976. But inspite of all this I feel, it is a case which would be squarely covered by the observations of the Supreme Court referred supra notwithstanding the inordinate delay. The interest of justice demands that the petition has to be decided on merit. Dismissing it on a technical ground of limitation would result in meritorious matter being thrown out at the very threshold.
4. Mr. Manohar invited my attention to the application filed by respondent No. 1 and contended that the application under section 91 of the Maharashtra Co-operative Societies Act was not tenable against the petitioner. He has also invited my attention to Explanation 2 of-section 91(3), the materiel protion of which reads as under:—
“Explanation 2—For the purposes of this sub-section, a dispute shall include—
(i) xxxx
(ii) xxxx
(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, or by any servant, past servant, or deceased servant, or by its committee, past or present, whether such loss be admitted or not:”
(Emphasis supplied)
5. According to Mr. Manohar, the petitioner is neither a member of the society nor its servant nor in any way connected with it and, therefore, section 91 of the Act could not be invoked against him by the society. The Co-operative Court in this regard has given inconsistent findings. At one place in para 13 of the judgment the Co-operative Court has referred to certain admission on the part of the petitioner that he has been the employee of the society but in para 22 while dealing with the case of the petitioner it has recorded a categorical finding which reads thus:—
“It is, therefore, clear that all this can be explained by one thing and that is, that the society had no kind of connection with him as driver of the truck and never entrusted any duties to him as alleged by him.”
6. It is surprising that inspite of the above finding the Co-operative Court has implicated the petitioner.
7. Mr. Manohar has invited my attention to the dispute (application) which was filed by the Co-operative Society (Sewa Sahakari Sanstha) and submitted that in the dispute there is not even a whisper against the petitioner and therefore, even if there is any averment in evidence that will have to be totally excluded and ignored. There is much substance in this submission of Mr. Manohar. There is no basis or foundation laid by the Society against the petitioner and therefore, he could not be found responsible for the misappropriation of the amount of the society. It is surprising that one who has actually used the truck and not pay the hire charges has been exonerated and the one who is not even remotely connected with the society has been implicated.
8. Mr. Belekar tried to support the award essentially on the ground that the petitioner was the servant of the society and therefore, he was connected with it and consequently the application under section 91 of the Act was maintainable. However, it was possible for him to show from the application that the petitioner was in any way connected with the society, either as a servant or in any other capacity. The application is absolutely silent in regard to the connection of the petitioner with the society. In view of this it would not be possible to sustain the award, notwithstanding that the appeal was preferred by the petitioner after several years. It is a case of grave injustice and if the award and the impugned order is allowed to sustain merely because the appeal was not filed within time, it would amount to mockery of justice; if would tentamount to legalising injustice on technical grounds. Having regard to the above facts the petitioner is allowed and the award dated 31-3-1968 as well as the appellate order dated 16-7-1979 in regard to the petitioner is quashed and set aside. Rule is made absolute in the above terms. There will be no order as to costs.
Rule made absolute.
Alert