NAJEEB C. Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) THE petitioner in this writ petition was the appellant before the Kerala Value Added Tax Appellate Tribunal, having filed appeals against the order of the first appellate authority confirming demands of penalty on him. Inasmuch as there was a delay in filing the application before the Appellate Tribunal, the petitioner had also preferred petitions for condonation of delay, supported by an affidavit giving an explanation for the delay occasioned. The Appellate Tribunal, on a consideration of the applications for condonation of delay preferred by the petitioner, proceeded to hold that the petitioner had not satisfactorily explained the delay that was occasioned, and therefore proceeded to dismiss the delay condonation petitions, and thereafter, the appeals as well. Counsel for the petitioner would point out that connected appeals in respect of the assessments, pertaining to the same assessment years, as involved in the instant cases are pending before the Appellate Tribunal for consideration on merits.

(2.) IN my view, the order of the Appellate Tribunal, in the delay condonation applications preferred by the petitioner, does not reflect a consideration of the facts relevant for consideration of the issue of condonation of delay in second appeal, under a statutory scheme of litigation. The parameters for exercise of discretion, in cases involving condonation of delay, have been laid down by the Supreme Court in a number of decisions wherein it is stated that, normally when a claim made by an applicant is legally sustainable, the delay must be condoned. It is also mandated that, when substantial justice and technicalities are pitted against each other, then the cause of substantial justice deserves to be preferred. There are cases where the conduct of a party must also be gone into, and where it is established that the conduct of the litigant party is not such as would indicate that he was negligent or callous in pursuing the matter before the Forum, and further, the delay was not so huge as would cause substantial prejudice or harm to the opposite side, the situation would normally call for a condonation of the delay. The legal principle that informs such decisions is that, as far as possible, in a legal arena, the attempt must always be to enable a consideration on merits rather than to throw out the matter, on technicalities. It would be instructive to refer to the judgment of the Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others - [ : JT 2013 (12) SC 450], where, at paragraphs 15 and 16, the court culled out the broad principles that should govern an application for condonation of delay. They read as follows: