Trust Equity & Fiduciary Relationship

DELAY DEFEATS EQUITY
Vigilantibus non dormientibus aequitas subvenit

INDEX OF AUTHORITY

BIBLIOGRAPHY * Equity, Trusts and Specific Relief, B.M. Gandhi, 4th Edition, 2007 * Snell’s Principles of Equity, p. 33 * Frunk and Wagnalls Standard Hand Book. Fernald J.C, 1973 * Black’s Law Dictionary, 9th Edition, 2009

INDEX OF CASES

* Allcard v Skinner (1887) 36 Ch D 145 * Lindsay Petroleum Co. v Hurd (1874) LR 5 PC * Nwakobi v Nzekwu 1964 WLR 1019 * Poole Corporation v. Moody, 1945 KB 250 * Smith v Clay 28 U.S. (3 Pet.) 411 * Ramsden v Dyson 1866) LR 1 HL 129 * Willmot v Barber (1880) 15 Ch D 96 * Prince of Wales v Collom (1916) 2 KB 193 * Forbes v Rall AIR 1925 PC 146 * Jadunath v Chandra Bhushan (1858) 6 HL Cas 633 * Union of India v Kishorilal Bablani (1999( 1 SCC 48 * Chatrabhuj v Mansukhram AIR 1925 Bom 183 * DDA v Ravindra Mohan Aggarwal (1999) 3 SCC 172 * Thakur Bai v Laxmi Chand AIR 1990 Del 223 * Mahadav v Kalekar v State Bank of Hyderabad (1990) 4 SCC 174 * Gauri Shankar Gaur v State of UP (1994) 1 SCC 92 * Ratan Chandra v Union of India 1993 Supp 4 SCC 67 * Krishna Dev v Ram Piari AIR 1964 HP 34 * Raghavan Nair v State AIR 1956 Trav. Co 77 * Tannu Singh v State of UP AIR 1992 NOC 9 * P.K. Ramchandran v State of Kerala (1997) 7 SCC 556 * Pallav Sheth v Custodian (2001) 7 SCC 549 * Tilokchand Motichand & Ors vs H.B. Munshi & Anr 1970 AIR 898 * Dilbagh Rai Jarry vs Union Of India And Others 1974 AIR 130 * A.C. Arulappan vs Smt. Ahalya Naik Appeal (civil) 5233 of 2001 * B.L. Sreedhar & Ors vs K.M. Munireddy Appeal (civil) 2971 of 1995 * Hameed Joharan (D) & Ors. vs Abdul Salam (D) By L.Rs. & Ors. AIR 2001 SC 3404

DELAY DEFEATS EQUITY
Vigilantibus non dormientibus aequitas subvenit

It is a general sense to comprehend that rights extended to an individual can prove effective only when the individual has the erudition of exercising such rights whenever he has been wronged and as soon as such iniquitous act has been done against him. The judiciary does not function upon the whims and illusion of convenience of complainants or defendants. They have a limitation period and rightly so. We have an entire statute, The Statute of Limitations Act, which provides the time frame within which action can be brought against another entity. If such time frame is not adhered to, the right to bring a suit extinguishes except in certain circumstances.
This maxim is mirroring the same thought line. If one sleeps upon his right, his rights will slip away from him and therefore this maxim has been expressed in a rather different form, shouting to the passive, otiose and slothful that : “Equity aids the vigilant and not the indolent”. It is thus rightly said that reasonable diligence is the primary requisite for equity. Lord Camden, an English Lawyer of the 18th Century was of the view that : “a court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith and reasonable diligence; where these are wanting, the court is passive, and does nothing.”
It has been thoroughly established in almost every legal system in the world that the governance, recognizing and regulation of rights and liabilities need to be done in a defined procedural form and is not to be subjected to the haphazard bidding of every individual.
Delay when fatal: In the following three cases delay is fatal for a party desirous of enforcing his right:
• As a result of delay when the available evidence is lost or destroyed.
• When the other party is induced to assume or draw an inference from one’ conduct that one has waived his right.
• Delay provides a ground to the other party and leads him to believe that one has agreed to abandon or release his rights
Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”. Laches has been derived from ancient French lachesse which stands for slackness. Laches is an unreasonable delay pursuing a right or claim...in a way that prejudices the opposing party. The practical application of this term happens when the party against whom the claim is brought after delay has had such changes in its position that such delayed litigation may cause further harm or damage to the defending party.
However it has been witnessed in few cases that the utilisation of this maxim is done only so to escape being penalised for wrongs committed. In such circumstances the burden is upon the court to look into the entire episode, gain clarity over the context and deduce whether the procrastination would be prejudicial to the interests of either party and only then determine the admissibility of the case.
So, if the inference can be drawn that the plaintiff agreed to abandon or release his rights or acted in a manner as to induce other parties to alter their position on the reasonable faith that he has done so, the matter is over because the plaintiff’s claim will be treated as abandoned. It must however be noted that laches is a personal disqualification and will not bind successor-in-title.
Customarily the actions subsequent to delay are governed by statutes. However, though the problem is the same the instances surrounding the problem may vary. As a conclusion may lead to termination of an individual’s right, strict application of statutory law may occasion miscarriage of justice. Hence the courts prefer to possess certain amount of discretion in such matters. Courts normally prefer to retain their discretion to refuse or to grant equitable remedy in aid of a legal right even though the right is subject to an express statutory period which has not expired
In Smith v Clay it was held that where an injured party has been slow to demand a remedy for a wrong which he has for a long time regarded with apparent indifference, the court will decline to give him that remedy on ground of public policy.
The Doctrine of Acquiescence was first propounded in Ramsden v Dyson, reiterated in Willmot v Barber, Prince of Wales v Collom and has been followed in India by Privy Council in Forbes v Rall. Acquiescence is a state of affairs where a person abstains from interfering while a violation of his legal rights is in progress

Indian Law and Delay Defeats Equity
In a case declared by Suhrawardy J. that “The English Doctrine of delay and laches showing negligence in seeking relief in a court of equity cannot be imported into the Indian Law in view of Article 113 of the Limitation Act, which fixes a period of three years within which a suit for specific performance must be brought.”. The conformities of his declaration implied that the statutory implementation of limitations laws must be down strictly and with vigour. The courts are not to be afforded any discretion over the extension of limitation on equitable grounds. Hence, contrary to the common law this particular doctrine has no large scope.
Though the scope is limited, it is still recognized. It was determined that legal claims are barred by statute of limitations and equitable claims may be barred not only by limitation law but also by unreasonable delay, called laches. In Chatrabhuj v Mansukhram, the plaintiff allowed his land to be occupied by the defendant and this was acquiesced by him even beyond the period of limitation. On a suit by the plaintiff for the possession of the land it was decided that as the period of limitation to recover possession had expired, no relief could be granted. In the same way where A seeks to set aside a contract of purchase the must apply for relief within the limitation period. But where he makes unreasonable delay and during that time other parties have acquired rights or where the property in question has deteriorated in value or where conditions are changed, the court will refuse rescission.
The respondent, in this case, successfully passed IAS and allied services Examination in 1974.Due to error in computation of vacancies by the department he was placed in class II post in 1976 instead of Class one post .The respondent represented in 1983.His representation was rejected in 1985.He therefore moved the court. Contention of the department was that it was not possible to reopen the issue after several years .The tribunal in 1994 allowed respondent’s application. Against this the Union of India came in appeal. It also grants benefit of Class 1 post of the respondent. Other persons claimed similar benefit. The Supreme Court, striking down the decision of the tribunal, held that delay of 15 to 20 years cannot be overlooked when an applicant comes before the court claiming equity and delay defeats equity is a well-known principle of jurisprudence. In stark contrast to this, the Court held in a case that where the respondents have neither pleaded nor shown any prejudice caused to him by the alleged time lag, it cannot be said that the petitioners are guilty of delay or laches in approaching the court for relief. A claim cannot be rejected merely on the ground of delay and laches. Delay destroys only the remedy but not the right. However, this is not absolute. In many cases delay defeats the right as well as the remedy.
The doctrine of acquiescence has also gained some recognition. As Snell puts is, acquiescence means conduct from which it can be inferred that a party has waived his rights. Acquiescence sometimes denotes a conduct which is evidence of intention of a party conducting himself to an equitable right, sometimes it denotes a conduct from which another party would be justified in inferring such an intention.
In Raghavan Nair v State, it was illustrated that laches is such negligence or omission to assert a right as, taken in conjunction with the lapse in time, more or great and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. So, if a party is aware that his right to a property is being interfered with and he doesn’t take any steps during such interference but later claims equitable rights then that won’t be granted to him.
In a case of 1997, the Court followed suit of the judgement given by Suhrawardy J in 1858 and expressed that the statutory limits should be strictly adhered to and the limitation period cannot be extended to on the basis of equitable rights. Providing an exception to this, it was held that a party cannot be penalised for delay in claiming equitable rights if the facts of the case were concealed from him. In some of the circumstances delay can be ignored
In the following circumstances delay can be ignored by the court. * Plaintiff was not aware of his right. * Plaintiff was not aware as to his legal position. * Plaintiff was minor. * Plaintiff was insane * Fraud * Natural Act * Illness * Under Influence * Substitute.Process * Compromise.

Hidayatullah CJ recommended in one case that in reference to cases revolving claims of equitable rights, the complainant must move to the court immediately and as soon as possible. He also added that he would refrain from providing a specific time limit like the statutes do but such claims should be made at the earliest. In Dilbagh Rai Jarry vs Union Of India And Others the Supreme Court observed that the Authority found that the applicant was guilty of gross negligence. He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application. In the circumstances, the Authority rightly refused to put a premium on this delay and laxity on the part of the appellant. Law courts never tolerate an indolent litigant since delay defeats equity.
Lapse of time and delay are most material when the plaintiff, by his conduct may be regarded as waiving his rights, or where his conduct, though not amounting to a waiver, has placed the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards asserted. When, however, an argument against a relief, otherwise just, is founded upon mere delay not amounting to bar by limitation, the validity of that defence must be tried by principles substantially equitable.
It cannot, but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times.
It can be seen from the cases cited above that the position of Vigilantibus non dormientibus aequitas subvenit is established in England with clarity and consistency. The position in India is slightly different. For instance, at the initial point it was believed that it would not be effective to introduce the ideas of delay defeats justice in India as the country needs to function through scrupulous consideration of its statutory laws. However, with the passage of time this doctrine has seeped its way into the legal world of Indian judiciary and various cases have been determined on the basis of this maxim.

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[ 1 ]. Equity, Trusts and Specific Relief, B.M. Gandhi, 4th Edition, 2007
[ 2 ]. Available At: http://www.legaltrigger.com/Admin/ArticleFiles/Critical%20Analysis%20of%20Delay%20defeat%20equities.pd
[ 3 ]. Snell’s Principles of Equity, p. 33
[ 4 ]. Frunk and Wagnalls Standard Hand Book. Fernald J.C, 1973
[ 5 ]. Black’s Law Dictionary, 9th Edition, 2009
[ 6 ]. Allcard v Skinner (1887) 36 Ch D 145
[ 7 ]. Lindsay Petroleum Co. v Hurd (1874) LR 5 PC
[ 8 ]. Nwakobi v Nzekwu 1964 WLR 1019
[ 9 ]. Poole Corporation v. Moody, 1945 KB 250
[ 10 ]. 28 U.S. (3 Pet.) 411
[ 11 ]. 1767 3 Bro CC 639
[ 12 ]. (1866) LR 1 HL 129
[ 13 ]. (1880) 15 Ch D 96
[ 14 ]. (1916) 2 KB 193
[ 15 ]. AIR 1925 PC 146
[ 16 ]. Supra Note 1
[ 17 ]. Jadunath v Chandra Bhushan (1858) 6 HL Cas 633
[ 18 ]. Union of India v Kishorilal Bablani (1999( 1 SCC 48
[ 19 ]. AIR 1925 Bom 183
[ 20 ]. Supra Note 17, DDA v Ravindra Mohan Aggarwal (1999) 3 SCC 172
[ 21 ]. Thakur Bai v Laxmi Chand AIR 1990 Del 223
[ 22 ]. Mahadav v Kalekar v State Bank of Hyderabad (1990) 4 SCC 174
[ 23 ]. Gauri Shankar Gaur v State of UP (1994) 1 SCC 92
[ 24 ]. Ratan Chandra v Union of India 1993 Supp 4 SCC 67
[ 25 ]. Snell’s Principles of Equity, p 632
[ 26 ]. Krishna Dev v Ram Piari AIR 1964 HP 34
[ 27 ]. AIR 1956 Trav. Co 77
[ 28 ]. Tannu Singh v State of UP AIR 1992 NOC 9
[ 29 ]. P.K. Ramchandran v State of Kerala (1997) 7 SCC 556
[ 30 ]. Pallav Sheth v Custodian (2001) 7 SCC 549
[ 31 ]. Tilokchand Motichand & Ors vs H.B. Munshi & Anr 1970 AIR 898
[ 32 ]. 1974 AIR 130
[ 33 ]. A.C. Arulappan vs Smt. Ahalya Naik Appeal (civil) 5233 of 2001
[ 34 ]. B.L. Sreedhar & Ors vs K.M. Munireddy Appeal (civil) 2971 of 1995
[ 35 ]. Hameed Joharan (D) & Ors. vs Abdul Salam (D) By L.Rs. & Ors. AIR 2001 SC 3404