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A K Mariamma1
The High Court of Kerala, Justice Antony Dominic on 10th April 2013 decided the
above case. In this case, the petitioner availed of a performance mobilization guarantee
of Rs.100 lakhs from the respondent bank. Though defaulted, the petitioner paid Rs.1.5
crore but the bank claimed that more than 2.7 crores is due to it. In 1995, Bank filed a
suit, the Sub-Court declared the defendants exparte and decreed to realise
58,07,134,05/- with interest @23.25% with quarterly rest till realisation. In 1999, the
bank filed petition before the Debt Recovery Tribunal and it was allowed to realise
Rs.1,32,69,251/- together with interest @23.25% with quarterly rest till realization.
In 2007, the petitioner approached the Debt Recovery Tribunal, Ernakulam praying to
set aside the exparte decree passed by the Sub Court and to condone the delay of
10years and 10 months as the summons issued by the Sub Court were not served on the
defendants‟ as they were in Bahrain since 1996 and on account of the orders passed in
Bahrain Courts, the first Petitioner was restrained from travelling outside that country.
Besides, from the beginning, the petitioner was trying to persuade the bank to settle the
liability and relying on the exparte judgment and decree illegally obtained, the bank was
making unreasonable demands and according to the petitioners, the delay of 10 years
and 10 months was not wilful so delay may be condoned, lest serious injustice and
prejudice would be caused to them.
In order to decide the condonation of delay, the Court referred the following judgments,
viz.
1
Dr. Mariamma A. K.., is an Associate Professor of Government Law College Calicut.
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3. In Post Master General & Others v. Living Media India Ltd. & Another4,
where Supreme Court on 24th February 2012 held that “Law of Limitation
undoubtedly hands everybody, including the Government. Government
departments are under a special obligation to ensure that they perform their
duties with diligence and commitment. Condonation of delay is an exception
and should not be used as an anticipated benefit for the Government
departments. The law shelters everyone under the same light and should not be
swirled for the benefit of a few”. The Department miserably failed to give any
acceptable and cogent reasons sufficient to condone such a huge delay of 427
days and dismissed the appeals on the ground of delay.
2
(1987)2 SCC 107.
3
(1998) 7 SCC 123.
4
(2012) 3 SCC 563.
5
(2012) 5 SCC 157.
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no negligence on the part of the applicant and the cause shown for the delay
does not lack bona fides, then it may condone the delay. If, on the other hand,
the explanation given by the applicant is bound to be concocted or he is
thoroughly negligent in prosecuting his cause, then it would be a legitimate
exercise of discretion not to condone the delay. In cases involving the State and
it agencies/instrumentalities, the Court can take note of the fact that sufficient
time is taken in the decision making process but no premium can be given for
total lethargy or utter negligence on the part of the officers of the State and or/
its agencies/instrumentalities and the applications filed by them for
condonation of delay cannot be allowed as a matter of course by accepting the
plea that dismissal of the matter on the ground of bar of limitation will cause
injury to the public interest? According to the Corporation, the papers required
for filing the first appeals were misplaced and not traceable inspite of good
efforts. But in our considered view, the cause shown by the Corporation for
delayed filing of the appeals was, to say the least, wholly unsatisfactory and
the reasons assigned by the learned single Judge for condoning more than 7
years delay cannot but be treated as poor apology for the exercise of discretion
by the Court under Section 5 of the Limitation Act”.
5. In this case Basheer M. Picha v. Indian Bank, the counsel for the Bank
contended that judgment in the case of Maniben Devraj (supra) was rendered
without referring to the judgment in Post Master General‟s case (supra). Since
the said case is being per incuriam, court should follow the judgment in Post
Master General‟s case (supra). Though the Supreme Court agreed that the
„Counsel is right in contending the Maniben Devraj‘s case was decided by a
Bench of equal strength and that it did not make reference to the Post Master
General‟s case judgment, it observed that „ having gone through both the
judgments, there is nothing contradictory in these judgments‟. On the other
hand, the judgments in Post Master General‘s case (supra) shows that liberal
construction should be adopted to advance substantial justice, but Supreme
Court declined to condone the delay due to absence of proper explanation.
High Court of Kerala went on “even if there is substance in the contention that
these two judgments lay down principles which are inconsistent then also the
question would be which of the judgments is to be followed by the Court, for
which it relied on Raman Gopi v. Kunju Rman Uthaman6, where in it was held
that “ in case of conflicting views taken in the decision of two benches of equal
6
2011 (4) KLT 458 (FB).
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strength of the Apex Court, the decision later in point of time, will prevail over
the earlier one”7.
Here comes the question, whether the above findings in Raman Gopi v. Kunju Rman
Uthaman (supra), which was relied on by the Kerala High Court in this case (Basheer
M. Picha v. Indian Bank) was correct? To answer this question, it is necessary to
analyse binding precedent and per incuriam with few judgments:
Salmond on Jurisprudence8 says, „from the earliest times the Judges of the king‟s courts
have been a small and compact body of legal experts. They have worked together in
harmony, imposing their own views of law and justice upon the whole realm, and
establishing thereby a single homogeneous system of common law, with little
interference either from local custom or from legislation. The centralisation and
concentration of the administration of justice in the royal courts gave to the royal judges
a power and prestige which would have been unattainable in any other system. The
authority of precedents was great in England because of the power, the skill, and the
professional reputation of the judges who made them. In England the bench has always
given law to the bar‟. Judicial decisions may be distinguished as authoritative and
persuasive. An authoritative precedent is one which judges must follow whether they
approve of it or not. A persuasive precedent is one which the judges are under no
obligation to follow, but which they will take into consideration, and to which they will
attach such weight as it seems to them to deserve. Authoritative precedents are legal
source of law, while persuasive precedents are merely historical. 9
Owing to the vast number of precedents, and the heterogeneous ways in which they are
reported or are not reported, it is only too easy for counsel to miss a relevant authority.
Whenever a relevant prior decision is not cited before the court, or mentioned in the
judgment, it must be assumed that the Court acts in ignorance or forgetfulness of it. If
the new decision is in conflict with the old, it is given per incuriam and is not binding
on a later court.10 The lower court may refuse to follow the later decision on the ground
7
See Para 60(1) of 2011 (4) KLJ 126 (FB).
8
See Salmond on Jurisprudence, 12 Edn., 2006, at p.142.
9
Ibid at p. 145.
10
Ibid at p.152.
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that it was arrived at per incuriam, or it may follow such decision on the ground that it
is the latest authority. Which of these two courses the court adopts depends or should
depend, upon its own view of what the law ought to be 11.
The single bench Justice S. S. Satheshchandran in Raman Gopi‘s case12 High Court of
Kerala, expressed a doubt- when conflicting views are expressed by co-equal benches in
respect to the same matter which one has to be followed and what are the principles if
any applicable to such a case. After referring several cases on the same point, expressed
doubt about the principles to be followed when two conflicting decisions of the Apex
Court, both rendered by co-equal benches are found applicable, and since there appears
to be no binding decisions by this High Court on that question, it is proper and
appropriate that the question be considered by a Division Bench of this High Court 13.
It is a relevant question- when conflicting views are expressed by two co-equal benches,
which is to be considered as binding precedent or whether the High Court is bound to
follow the later decision binding? Regarding this question also there are conflicting
views, viz.
1. In Deputy Commissioner v. Andaman14 , a division bench of Kerala High Court
held that “when both the decisions have been rendered by benches of equal
strength, High Court is bound to follow the later decision”.
11
Ibid at p.153.
12
2009 (4) KLT 414.
13
Ibid at para 10.
14
1987 (1) KLT 192.
15
(1991) 4 SCC 139.
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discipline16. It has also been held that any declaration or conclusion arrived
without application of mind or preceded without any reason cannot be deemed
to be declaration of law or authority of general nature binding as a precedent 17.
“Law declared is not that can be culled out, but that which is stated as law to be
accepted and applied. A conclusion without reference to relevant provision of
law is weaker than even casual observation18”.
3. In Union of India v. Dhanavanti Devi19 Supreme Court held that it is only the
principle laid down in the judgment that is binding law under Article 141 of the
Constitution and in order to understand and appreciate the binding force of a
decision, it is always necessary to see what were the facts in the case in which
the decision was given and what was the point which has to be decided. It has
also observed that „no judgment can be read as if it is a statute‟.
16
Muncipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38.
17
Sharma Rao v. State of Pondicherry, AIR 1967 SC 1680.
18
(1991) 4 SCC 139 at para. 6.
19
(1996) 6 SCC 44.
20
(2002) 4 SCC 638.
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precedent for future cases. Only the principles of law that emanate from a
judgment of this court, which have aided in reaching a conclusion of the
problem, are binding precedents within the meaning of Art.141. However, if
the question of law before the Court is same as in the previous case, the
judgment of the Court in the former is binding in the latter, for the reason that
the question of law before the Court is already settled. In other words, if the
Court determines a certain issue for a certain set of facts, then that issue stands
determined for any other matter on the same set of facts”.
The above said point was made it clear by the Supreme Court in Haryana
Financial Corp. v. Jagdamba Oil Mills21 where in the Apex Court had
observed, “Courts should not place reliance on the decision without discussing
as to how the situation fits in with the fact situation of the decision of which
reliance is placed”. Judgments of Courts are not construed as Statutes. Judges
interpret statutes, they do not interpret words of statutes, and their words are
not to be interpreted as statutes”. In Ganapati Sitaram Balvalkar & Another v.
Woman Shripad Mage22 also, Supreme Court laid down the principle that
decision of four Judges Bench is binding on a Bench of three Judges.
Per Incuriam:
In State of U.P. and Another v. Synthetics and Chemical Limited and Another23
Supreme Court explained the term „ Incuria‘ literally means „carelessness‟. In practice
per incuriam appears to mean per ignoratium. English Courts have developed this
principle in relaxation of the rule of stare decisis. The „quotable in law‟ is avoided and
ignored if it is rendered, „in ignoratium of a statute or other binding authority‟.
In Dr.Vijay Laxmi Sadho v. Jagdish24 it has been observed by the Supreme Court that
“As the learned Single Judge was not in agreement with the view expressed in Devilal‟s
case it would have been proper, to maintain judicial discipline, to refer the matter to a
larger Bench rather than to take a different view. We note it with regret and distress that
21
(2002) 3 SCC 496.
22
AIR 1981 SC 1956.
23
1993 (41) SCC 326.
24
(2001) 11 SCR 95.
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the said course was not followed. It is well-settled that if a Bench of coordinate
jurisdiction whether on the basis of „different arguments‟ or otherwise, on a question of
law, it is appropriate that the matter be referred to a larger Bench for resolution of the
issue rather than to leave two conflicting judgments to operate, creating confusion. It is
not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety
forms the basis of judicial procedure and it must be respected at all costs”. The same
view was reiterated in Pradip Chandra Parija and Others v. Pramod Chandra Patnaik
and Others25, wherein Supreme Court held that “Judicial discipline and propriety
demands that a Bench of two learned Judges should follow a decision of a Bench of
three judges. But if a Bench of two learned Judges concludes that an earlier judgment of
three learned judges is so very incorrect that in no circumstances can it be followed, the
proper course for it to adopt is to refer the matter before it to a Bench of three learned
Judges setting out, as has been done here, the reasons why it could not agree with the
earlier judgment. If then, the Bench of three learned judges also comes to the conclusion
that earlier judgment of a Bench of three learned Judges is incorrect, reference to a
Bench of five learned judges is justified”.
In Subash Chandra and Another v. Delhi Subordinate Services Selection Board and
Others26, Justice S.B. Sinha stated that “it is now well settled principle of law that a
division bench, in case of conflict between a decision of Division Bench of two Judges
and a decision of a larger Bench and in particular Constitution Bench, would be bound
by the latter”.
In Union of India and others v. S.K. Kapoor27 Supreme Court held that “it is well settled
that if a subsequent co-ordinate bench of equal strength wants to take a different view, it
can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate
bench is binding on the subsequent bench of equal strength. Since the decision in S.N.
Narula‘s case28 was not noticed in T.V. Patel‟s case 29, the latter decision is a judgment
per incuriam. The decision in S. N. Nirula‘s case was binding on the subsequent bench
25
(2002) 1 SSC 1.
26
(2009) 5 SCC 458.
27
(2011) 4 SCC 589.
28
S. N. Narula v. Union of India and Ors., Civil Appeal No. 642 of 2004 decided on 30/1/2004.
29
Union of India v. T. V. Patel, (2007) 4 SCC 785, decided on 19/4/2007.
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of equal strength and hence, it could not take a contrary view, as is settled by a series of
judgments of this Court”.
Supreme Court again in Safiya Bee v. Mohammad Vajahath Hussain alias Fasi30 it was
held that “judicial discipline and practice required them to refer the issue to a larger
Bench. The learned judges were not right in over-ruling the statement of the law by a
co-ordinate Bench of equal strength. It is an accepted rule or principle that the statement
of the law is considered binding on a Bench of the same or lesser number of Judges. In
case of doubt or disagreement about the decision of the earlier Bench, the well accepted
and desirable practice is that the later Bench would refer the case to a larger Bench”.
Three Judge Bench of Supreme Court in Official Liquidator v. Dayanand and Others31
reiterated the necessity to maintain judicial discipline and stated, “We are distressed to
note that despite several pronouncements on the subject, there is substantial increase in
the number of cases involving violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to follow and accept the verdict
and law laid down by coordinate and even larger Benches by citing minor difference in
the facts as the ground for doing so. Therefore, it has become necessary to reiterate that
disrespect to constitutional ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance litigation. It must be
remembered that predictability and certainty is an important hall mark of judicial
jurisprudence developed in this country in last six decades and increase in the frequency
of conflicting judgments of the superior judiciary will do incalculable harm to the
system in as much as the courts at the grass root will not be able to decide as to which
of the judgment lay down the correct law and which one should be followed” … “We
may add that in our constitutional set up every citizen is under a duty to abide by the
Constitution and respect its ideals and institutions. Those who have been entrusted with
the task of administering the system and operating various constituents of the State and
who take oath to act in accordance with the Constitution and uphold the same, have to
set an example by exhibiting total commitment to the Constitutional ideals. This
principle is required to be observed with greater rigour by the members of judicial
fraternity who have been bestowed with the power to adjudicate upon important
constitutional and legal issues and protect and preserve rights of the individuals and
society as a whole. Discipline is sine qua non for effective and efficient functioning of
30
AIR 2011 SC 421.
31
(2008) 10 SCC 1.
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judicial system. If the Courts command others to act in accordance with the provisions
of the Constitution and rule of law, it is not possible to countenance violation of the
constitutional principle by those who are required to lay down the law”.
From the above mentioned cases it was very clear that the Supreme Court has
consistently taken the view that “if the co-equal bench is not in agreement with the
decision of the earlier bench, it can only refer the matter to the Bench with more judges.
A Bench of lesser quorum cannot question the correctness of the view taken by a larger
Bench”. Therefore, the Kerala High Court in this case could have followed the above
said principle as laid down by the Supreme Court of India because the judgment later in
point of time will be per incuriam unless there is change of law. Only when the later
decision was of the changed law that can be followed, otherwise the second one by the
co-equal bench will only be per incuriam.
Though the High Court in the present case condoned the delay of 10 years and 10
months on the ground that the respondent did not get the notice issued by the Sub Court,
the finding of the Court to follow the judgment rendered later in point of time does not
sound good as it is per incuriam. That apart, it sets a bad precedent which scuttles the
credibility of judicial institution and encourages chance litigation and opportunism.
125
Auricle
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