Heard learned counsel for appellants in both the appeals.
Notices to the sole respondent in both these appeals were issued by the Court; on 04.09.2018 in Second Appeal No.250 of 2018 and on 05.09.2018 in Second Appeal No.251 of 2018. As per the office report submitted on 27.10.2018, notice on the sole respondent in both these matters is deemed sufficient.
Since both these second appeals have been filed on similar grounds and the Court finds that similar substantial questions of law are involved in both these matters, these appeals are being decided by a common judgment and order.
Substantial questions of law involved in these appeals which merit determination by this Court are:
- Whether finding recorded by the Real Estate Appellate Tribunal in respect of the appellant having failed to show sufficient cause for not filing First Appeal before it within limitation prescribed under section 44(2) of the Real Estate (Regulation and Development) Act, 2016 is based on wrong notion and on gross misconception of law ?
- Whether the Real Estate Appellate Tribunal was right in holding that the appellant had acted negligently and filed the appeal beyond limitation period ?
Shorn of unnecessary details, the facts which are necessary for appropriate adjudication of the issue involved in these cases are that the appeals filed in both these cases by the appellants under section 44 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the Act, 2016’) have been dismissed only on the ground of delay of 37 and 22 days respectively. The complainants-appellants in both these matters had invoked the jurisdiction of Real Estate Regulatory Authority (hereinafter referred to as ‘the Authority’) established under section 20 of the Act, 2016 by making complaints relating to their grievances in the matter of delivery of possession of flats in Project Glory-46 (Phase-1 to Phase-7) being developed by the respndent-M/s Gardenia Aims Developers Pvt. Ltd. at Sector-46, NOIDA. The complaints made by the complainants-appellants was partly allowed and promoter-respondent was directed to give physical possession of the flats to the appellants within six months. The promoter was also directed to make payment of a sum at the rate of Rs 5 per square feet of the super area per month for the period of delay. However, since certain other grievances stood unredressed by the order passed by the Authority, the complainants-appellants preferred First Appeals under section 44 of the Act, 2016 which have been dismissed only on the ground of delay of 37 days and 22 days respectively in preferring the appeals under section 44 of the Act, 2016. The order by the Authority in Second Appeal No.250 of 2018 was passed on 25.01.2018 whereas in Second Appeal No.251 of 2018 the said order was passed on 22.02.2018.
In Second Appeal No.250 of 2018, against the order of the Authority dated 25.01.2018 the appeal before the Appellate Tribunal was filed on 02.05.2018, whereas in Second Appeal No.251 of 2018, the appeal before the Appellate Tribunal against the order of the Authority dated 22.02.2018 was filed on 15.05.2018. Since the limitation for filing the appeal before the Appellate Tribunal as prescribed under section 44(2) is 60 days from the date on which a copy of the order made by the Authority is received by the aggrieved persons, hence it was found by the Appellate Authority that there was a delay of 37 and 22 days respectively in filing the said appeals.
Section 44 of the Act, 2016 provides for a statutory remedy of appeal to be filed before to the Appellate Tribunal against any direction or order or decision of the Authority, which may be preferred by the person aggrieved. Sub section 2 prescribes that such appeal may be preferred within a period of 60 days from the date on which a copy of direction or order or decision made by the Authority is received by the aggrieved person. However, the proviso appended to sub section of section 44 further provides that if the Appellate Tribunal is satisfied that there was sufficient cause for not filing the appeal within the period prescribed, it may entertain any appeal after expiry of 60 days. Sections 44(1) and 44(2) of the Act, 2016 are quoted hereunder:
“44. Application for settlement of disputes and appeals to Appellate Tribunal. (1) The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal.
(2). Every appeal made under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee, as may be prescribed:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.”
Thus so far as the authority or power or jurisdiction of the Appellate Tribunal for condoning the delay in preferring appeal under section 44 is concerned, the Act, 2016 itself permits the Appellate Tribunal to condone the delay on its satisfaction regarding sufficient cause for not preferring the appeal within limitation.
What constitutes “sufficient cause” cannot be described in any straight jacket formula. Existence of sufficient cause will depend on the facts and circumstances of the case. As to whether there existed sufficient cause or not is an issue which ought to be considered by the Appellate Tribunal in case appeal is filed before it accompanied by an application seeking condonation of delay in preferring the appeal.
So far as the Second Appeal No.250 of 2018 is concerned, it was submitted by the appellant before the Appellate Tribunal, seeking condonation of delay in filing the appeal, that when the Authority passed the order, i.e. on 25.01.2018 the Appellate Tribunal was not functional and therefore the appellant could not prefer the appeal within the prescribed period. It was further stated by the appellant that certified copy of the order was necessary to be filed along with the memorandum of appeal, however, the Authority started issuing certified copies of the order from 07.03.2018 and accordingly the appellant applied for for certified copy of the order on 07.03.2018 and the same was made available to him on 02.05.2018 and immediately thereafter the appellant preferred the appeal without any further delay. It was further contended by the appellant that delay in filing the appeal was neither deliberate nor intentional but the same had occurred on account of the fact that the appellant could not receive the certified copy of the order and further that in case delay in filing the appeal is not condoned the appellant shall suffer irreparable loss.
Similar pleas were taken by the appellant of Second Appeal No.251 of 2018 before the Appellate Tribunal.
The Appellate Tribunal, however, while passing the order under appeal herein has observed that the appeal was filed after delay of 37 and 22 days respectively. It is also very relevant to notice that the Appellate Tribunal itself has mentioned in the order under appeal herein that the Appellate Tribunal started functioning with effect from 20.02.2018 on issuance of necessary notification by the State of Uttar Pradesh. Thus, it is not in dispute that on 25.01.2018 when the order by the Authority was passed, the Appellate Authority was not functional.
The Appellate Authority further goes on to record a finding that the contention of the appellant that the appeal could not be preferred within the prescribed time on account of the fact that the Tribunal was not functional, does not have any force because after 20.02.2018 the appellant of Second Appeal No.250 of 2018 had sufficient time for filing the appeal within the stipulated time of 60 days. The Appellate Tribunal has further observed that the contention of the appellant that authorities started issuing certified copies of the order only from 07.03.2018 was not believable because the appellant had not adduced any evidence to show that prior to 07.03.2018 the Authority declined to issue the orders passed by it and further that the appellant had not explained as to when the appellant tried to obtain attested true copy of the order passed by the Authority. After narrating these reasons, the Appellate Authority further states in the order under appeal that in absence of the said explanation, it will be presumed that the appellant did not try to obtain the attested true copy of the order passed by the Authority at all for the purposes of filing the appeal within the limitation of 60 days. The Appellate Tribunal further records that the submission of the appellant to the effect that the appellant applied for the certified copy of the order passed by the Authority on 07.03.2018 appears to be incorrect as the attested true copy of the order passed by the Authority which was enclosed with the appeal does not show that the same was applied for by the appellant on 07.03.2018 which, however, only shows that the same was issued on 02.05.2018.
The Appellate Tribunal also goes on to record a finding that the appellant was having sufficient time of 24 days with effect from 25.01.2018 to 19.02.2018 i.e. during which period the appellant could have completed the formalities for filing appeal and would have filed the same on 20.02.2018 i.e. the day on which the Appellate Tribunal started functioning or thereafter till date of expiry of period of limitation, however, the appellant has failed to explain as to what prevented the appellant from not preparing the appeal within the said period.
The Appellate Tribunal thereafter has quoted the judgment of Hon’ble Supreme Court in the case of Basawaraj and another vs. Special Land Acquisition Officer, reported in [(2013) 14 SCC 81]. The Appellate Tribunal has also quoted another judgment of Hon’ble Supreme Court in the case of Brijesh Kumar and others vs. State of Haryana and others, reported in [(2014) 11 SCC 351].
After quoting certain extracts of the aforesaid judgments of Hon’ble Supreme Court, the Appellate Tribunal has stated in the order under appeal herein that it is the burden on the appellant to show “sufficient cause” for seeking condonation of delay in preferring the appeal and that the appellant has completely failed to explain as to why appeal was not filed within 60 days. It further goes on to record that the conduct of the appellant apparently shows negligence on his part in not filing the appeal and that the reasons mentioned in the application seeking condonation of delay cannot be stated to constitute sufficient cause.
Having gone through the orders passed by the Appellate Tribunal which are under challenge in both these second appeals, the Court is constraint to observe that it finds itself at loss of words to describe the approach and the manner in which the Appellate Tribunal has proceeded and considered the issue of condonation of delay in preferring the appeals before it. A closer scrutiny of the orders under appeal explicitly manifest that the same are based on complete wrong notion and on gross misconception of law relating to condonation of delay. The Appellate Tribunal has merely quoted the extracts from the aforementioned judgments of Hon’ble Supreme Court, however, it has utterly failed to apply the legal principles enunciated by Hon’ble Supreme Court in the said judgments to the facts of the case which were pleaded before it.
Hon’ble Supreme Court in the case of Basawaraj and another (supra) itself has pronounced that expression “sufficient cause” should receive a liberal interpretation to ensure that substantial justice is done, however, Hon’ble Supreme Court has further observed in the said judgment that such liberal interpretation should be given only as long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned.
Though in the instant cases, delay which is said to have occurred in filing the appeals before the Appellate Tribunal is only of 37 and 22 days, however, it is well settled principle of law that length of delay is not material; rather it is acceptability of the explanation for sufficient cause which is the only criteria to be considered for condoning the delay. It is also to be noticed that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. In the case of N. Balakrishnan vs. M. Krishna Murthy, reported in [(1998) 7 SCC 123), Hon’ble Supreme Court has held that, “time-limit fixed for approaching the court in different situations is not because on expiry of such time a bad cause would transform into a good cause”. Hon’ble Supreme Court has further held that rules of limitation are not meant to destroy the rights of parties; rather they are meant to ensure that parties are not able to adopt a dilatory tactics, but seek their remedy promptly.
Paragraphs 10 and 11 in the case of N. Balakrishnan (supra) are relevant to appropriately comprehend the principles relating to condonation of delay and limitation which are extracted herein below:
“10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in 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 right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It 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 right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”
In paragraph 12 of the said judgment in the case of N. Balakrishnan (supra) it has further been held that there is no presumption that delay in approaching the Court is always deliberate. Their Lordships of Hon’ble Supreme Court have further observed that there can be some lapse on the part of the litigant concerned in every case of delay, however, that alone is not enough to turn down the plea and to shut the door against such a litigant. It has further been observed by their Lordships in the said judgment that in case the explanation for sufficient cause is not mala fide or it has not been pleaded as part of a dilatory strategy, the court must show utmost consideration for condoning the delay. It is of some benefit to quote the observations made by Hon’ble Supreme Court in the case of N. Balakrishnan (supra) in paragraphs 12 and 13 which are as under:
“12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and State of West Bengal Vs. Administrator, Howrah Municipality.
- It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning delay, the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.”
Emphasizing on adopting justice-oriented approach by the courts/judicial authorities, Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, reported in [(1987) 2 SCC 107] has held that the power to condone the delay is conferred in order to enable the courts to do substantial justice to the parties by disposing of the matters on merits and further that the expression “sufficient cause” is elastic enough to enable the courts to apply the law in a meaningful manner to subserve the ends of justice. Hon’ble Supreme Court goes on to the extent of observing that to subserve the ends of justice is the life- purpose of existence of the institution of Courts. Hon’ble Supreme Court in the said case of Collector, Land Acquisition, Anantnag and another (supra) calls for adopting a liberal approach in the matters relating to condonation of delay in instituting the proceedings before the Courts which will be applicable to other judicial fora as well, and has formulated the following principles:
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
- 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.
- “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.
- 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.
- 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.
- 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.”
On a detailed review of the precedents on the law relating to limitation and condonation of delay, Hon’ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in [(2013) 12 SCC 649] has enunciated broad principles in para 21 and 22 which are as follows:
“21.From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short 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 strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
- To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.”
Thus, broadly speaking, the approach while considering a prayer or application seeking condonation of delay in instituting any proceedings which should be adopted by a court or a judicial forum is that it should not proceed on the premise or assumption that delay in approaching the court is always deliberate and that the primary function of the court or an adjudicatory authority is to adjudicate the dispute, rather than to shut its door to a litigant or a party.
What needs to be borne in mind is that the expression “sufficient cause” is adequately elastic so as to apply the law relating to condonation of delay in a meaningful manner to subserve the ends of justice. The approach of the court or a judicial forum in such a matter should be liberal, non-pedantic and justice-oriented. While there cannot be any presumption of deliberately causing delay, however, in case the party institutes the proceedings with the delay and is found to have acted cursorily or negligently, the said aspect is also to be taken into account. In case of lack of bona fides or gross negligence or in case of any attempt by a party to adopt dilatory tactics, the courts should be cautious.
Having noticed the law relating to limitation and condonation of delay as above, if the facts of the instant case are analyzed, what is found here is that the finding of the Appellate Tribunal is based on completely wrong notion and gross misconception of law. The Appellate Tribunal in the orders under appeal herein has admitted that the Tribunal itself had started functioning only with effect from 20.02.2018 and in one of the cases, the order by the Authority was passed on 25.01.2018, that is a month before the Appellate Tribunal commenced its functioning. In the other case the order by the Authority was passed on 22.02.2018 i.e. only two days after the Appellate Tribunal started functioning. The finding of the Appellate Tribunal that during the period the Appellate Tribunal had not even commenced its functioning, the appellant of Second Appeal No.250 of 2018 did not make any efforts to get the formalities completed and appeal prepared, cannot be appreciated. When the Appellate Tribunal itself did not commence its functioning and the appellant could not obtain the certified copy of the order passed by the Authority for the reason that certified copies of the orders were started to be issued only on 07.03.2018, attributing negligence or mala fide to the appellant cannot be appreciated.
Moreover, implementation of the Act, 2016, incorporation and constitution of the Real Estate Regulatory Authority, the Real Estate Appellate Tribunal and also the Adjudicating Officer are all in their nascent stage. The Act, 2016 by the Parliament has been enacted to ensure not only promotion of Real Estate Sector but also to ensure that sale of plot, apartment or building is done in an efficient and transparent manner. It has been enacted also to protect the interest of consumer in the real estate sector and to establish adjudicating mechanism for speedy dispute redressal.
Having regard to the object of the Act, 2016, in case the approach adopted by the Appellate Tribunal in these cases while dealing with the prayer/application for condonation of delay, is approved, the same may result in defeating the very purpose of the said enactment. The Parliamentary mandate as contained in the Act, 2016 will, thus, be jeopardized and the mechanism of adjudication of disputes/redressal of grievances provided for in the Act, 2016 shall fail to achieve the purpose for which such mechanism has been provided for by the Legislature.
For the reasons aforesaid, both the second appeals are allowed on both the substantial questions of law as formulated in the earlier part of the judgment. The orders under appeals dated 05.07.2018 (in Second Appeal No.250 of 2018) and dated 09.07.2018 (in Second Appeal No.251 of 2018) are, thus, hereby set aside.
The applications moved by both the appellants before the Real Estate Appellate Tribunal seeking condonation of delay in filing their respective appeals against the orders dated 25.01.2018 and 22.02.2018 are allowed and delay is condoned. The matters are remitted to the Real Estate Appellate Tribunal for deciding the appeals on merit.
There will be no order as to cost.