RAMLAL Vs. REWA COALFIELDS LTD

JUDGEMENT

(1.) THE short question which falls to be considered in this appeal relates to the construction of Section 5 of the Indian Limitation Act IX of 1908. It arises in this way. The Respondent Rewa Coalfields Limited is a registered company whose coal -mines are strutted at Burhar and Umaria. Its registered office is at Calcutta. The Appellant is a firm, Chaurasia Limestone Company, Satna, Vindhya Pradesh, by name and the three brothers Ramlal, Motilal and Chhote lal are its partners. The Appellant pre -pares and deals in limestone at Maihar and Satna and for the use in their lime -kilns it purchased coal from the Respondent's coalmines at Umaria, by means of permits issued to it by Coal Commissioner, Calcutta. According to Respondent's case the Appellant purchased from it 3,307 tons of coal at the rate of Rs. 14 -9 -0 per ton between January 1952, and March 1953. The price for this coal was Rs. 48,158 -4 -0. Since the Appellant did not pay the price due from it the Respondent filed the present suit in the Court of the District Judge, Umaria, and claimed a decree for Rs. 52,514 -14 -0 - including interest accrued due on the amount until the of the suit.

(2.) A substantial part of the Respondent's claim was disputed by the Appellant. It was urged by the Appellant in its written statement that the amount claimed by the Respondent had been arbitrarily calculated and that for a substantial part of the coal purchased by the Appellant from the Respondent due price had been paid. The Appellant pleaded that for some time past it had stopped purchasing coal from the Respondent and it was obtaining its supplies from Messrs. Sood Brothers, Calcutta to whom payments for the coal supply had been duly made. The Appellant admitted its liability to pay Rs. 7,496 -11 -0 and it expressed its readiness and willingness to pay the said amount.

(3.) AGAINST this decree the Appellant preferred, an appeal in the Court of the Judicial Commissioner, Vindhya Pradesh, Rewa, on February 17, 1955 (Appeal No. 16, 1955). The main contention raised by the Appellant in this appeal was that the ex -parte decree should be set aside and the case remanded to the trial Court with the direction that the Appellant should be allowed to lead its evidence and the case disposed of in accordance with law in the light of the said evidence. On February 19, 1955, the Appellant filed an application under Section 5 of the Limitation Act and prayed that one day's delay committed by it in filing the appeal should be condoned because Ramlal, one of the partners of the appellants firm, who was in charge of the litigation, fell ill on February 16, 1955, which was the last date for filing the appeal. This application was supported by an affidavit and a medical certificate showing that Ramlal was ill on February 16, 1955. The learned Judicial Commissioner, who heard this application, appears to have accepted the Appellant's case that Ramlal was ill on February 16 and that if only one day's delay had to be explained satisfactorily by the Appellant his illness would constitute sufficient explanation but, it was urged before him by the Respondent that the Appellant had not shown that its partners were diligent during the major portion of the period of limitation allowed for appeal, and since they put off the filing of the appeal till the last date of the period of limitation the illness of Ramlal cannot be said to be sufficient cause for condoning the delay though it was only one day's delay. On the other hand, the Appellant urged that it had a right to file the appeal on the last day and so the delay of one day which it was required to explain by sufficient reason had been satisfactorily explained. The learned Judicial Commissioner, however, accepted the plea raised by the Respondent and in substance refused to excuse delay on the ground that that Appellant's partner had showed lack of diligence and negligence during the whole of the period of limitation allowed for the appeal. It is on this ground that the application for condonation of delay was rejected and the appeal was dismissed on August 6, 1955.