Rai Bahadur Singh and Another v Bank of India

JurisdictionSingapore
Judgment Date21 May 1993
Date21 May 1993
Docket NumberCivil Appeal No 184 of 1992
CourtCourt of Appeal (Singapore)
Bank of India
Plaintiff
and
Rai Bahadur Singh and another
Defendant

[1993] SGCA 41

Judith Prakash JC

Civil Appeal No 184 of 1992

Court of Appeal

Civil Procedure–Appeals–Leave–Appeal pending before Court of Appeal–Whether single judge had jurisdiction to hear application to effect service of record of appeal out of time–Factors to be considered by court exercising discretionary power to grant extension–Sections 36 (1) and 36 (2) Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)–Order 57 rr 9 (1) and 9 (5) The Rules of the Supreme Court 1970

The appellant applied to effect service of its record of appeal out of time. The respondent objected to the application on the ground that the court did not have jurisdiction to hear the application as it was made to a single judge. Even if jurisdiction existed, the respondent argued that the power to grant an extension was a discretionary power and should not be exercised in the appellant's favour.

Held, allowing the application:

(1) The appellant had failed to comply with O 57 r 9 (1) and under O 57 r 9 (5), the appeal was deemed to have been withdrawn. However, O 57 r 9 (5) made it clear that the appellant had the option of taking a further step, viz to apply to the Court of Appeal for an extension of time to comply with r 9 (1). Under s 36 (1) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (“the Act”) a judge could exercise the powers of the Court of Appeal if there was, in the words of the section, “a proceeding pending before the Court of Appeal”. A legal proceeding was pending if any further step of any sort could be taken. The court comprising of a single judge therefore had jurisdiction to deal with the application: at [5], [6], [17] and [19].

(2) The finding that the court had jurisdiction to hear the application was consistent with the legislative intent behind s 36 (1) of the Act to avoid burdening a three-judge court with interlocutory applications relating to an appeal which could be more expeditiously and less expensively disposed of before a single judge. Furthermore, this application was obviously one which fell within the words “any interim order to prevent prejudice to the claims of parties pending the appeal”: at [20].

(3) The application was allowed as the appellant's delay in serving the respondent the record of appeal had no substantial effect since the respondent was fully aware of the documents that were to be in the record of appeal. The delay was due to the inadvertence of the appellant's solicitors' clerk. The delay was not intentional and it was not alleged that there had been any mala fides in the actions of the appellant or its solicitors. Furthermore, the respondent's solicitors properly conceded that the respondent would not suffer any prejudice should the extension of time be granted: at [29], [30] and [31].

Chen Chien Wen Edwin v Judith Rosemary Pearson [1991] 1 SLR (R) 348; [1991] SLR 578 (distd)

Clagett's Estate, In re; Fordham v Clagett (1882) 20 Ch D 637 (folld)

Hau Khee Wee v Chua Kian Tong [1985-1986] SLR (R) 1075; [1986] SLR 484 (folld)

K Sockalinga Mudaliar v S Eliathamby [1952] MLJ 77 (folld)

Lariza (Singapore) Pte Ltd v Bank Negara Indonesia 1946 [1985-1986] SLR (R) 470; [1984-1985] SLR 315 (folld)

Ng Yit Seng v Syarikat Jiwa Mentakab Sdn Bhd [1981] 2 MLJ 194 (distd)

Pearson Judith Rosemary v Chen Chien Wen Edwin [1991] 2 SLR (R) 260; [1991] SLR 212 (folld)

Salt v Cooper (1880) 16 Ch D 544 (refd)

Rules of the Supreme Court 1970, The O 57 rr 9 (1), 9 (5) (consd);O 57 r 17

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) ss 36 (1), 36 (2) (consd);ss 29, 30

Victor Sim (Khattar Wong & Partners) for the appellant

Richard Choong (Drew & Napier) for the respondent.

Judith Prakash JC

1 This was an application by the appellants for permission to effect service of their record of appeal out of time. It was brought before me pursuant to s 36 (1) of the Supreme Court of Judicature Act (Cap 322) (“the Act”) which gives a single judge the power to dispose of interlocutory matters in appeals pending before the Court of Appeal.

2 The respondents objected to the application on two grounds:

(a) that a single judge did not have jurisdiction to hear this application;

(b) even if jurisdiction existed, the power to grant an extension was a discretionary power and there was no good reason to exercise such discretion in favour of the appellants.

3 After hearing argument, I decided both issues in favour of the appellants and I now give my reasons for doing so.

The jurisdiction point

4 To understand the respondents' argument on jurisdiction it is necessary to refer to ss 36 (1) and 36 (2) of the Act and to O 57 rr 9 (1) and 9 (5) of The Rules of the Supreme Court 1970. These provide as follows:

Section 36

  1. (1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the appeal, any interim order to prevent prejudice to the claims of parties pending the appeal, and any order for security for costs and for the dismissal of an appeal for default in furnishing security so ordered, may...

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  • Au Wai Pang v AG
    • Singapore
    • Court of Appeal (Singapore)
    • 30 Abril 2014
    ...contours of this line could only be determined on a case-by-case basis: at [69] , [70] and [73] .] Bank of India v Rai Bahadur Singh [1993] 2 SLR (R) 1; [1993] 2 SLR 592 (refd) Brown v Brook (1902) 86 LT 373 (refd) Clagett's Estate, Re; Fordham v Clagett (1882) 20 Ch D 637 (refd) Cropper v ......
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    ...on the basis that the additional evidence could be adduced, and the other without the same: at [12]. Bank of India v Rai Bahadur Singh [1993] 2 SLR (R) 1; [1993] 2 SLR 592 (refd) Benson v Benson [1941] P 90; [1941] 2 All ER 335 (folld) Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745 ......
  • Ong Cheng Aik v Dayco Products Singapore Pte Ltd (in liquidation)
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    • Court of Appeal (Singapore)
    • 16 Marzo 2005
    ...to take a required step in time. This difference was noted by Judith Prakash JC (as she then was) in Bank of India v Rai Bahadur Smith [1993] 2 SLR 592 when she said at 597, [T]hese factors [the four factors listed in Hau Khee Wee] are factors to be considered when an applicant wants leave ......
  • Au Wai Pang v Attorney-General and another matter
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    • Court of Appeal (Singapore)
    • 30 Abril 2014
    ...Hon Ching [1985-1986] SLR(R) 869 (at [7]) and the Singapore Court of Appeal decision of Bank of India v Rai Bahadur Singh and another [1993] 2 SLR(R) 1 (“Bank of India”) (at [14]) cited the same passage with approval. The definition in Stroud’s Judicial Dictionary appears to have stemmed fr......
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1 books & journal articles
  • PRINCIPLES GOVERNING THE COURT’S DISCRETION TO EXTEND TIME
    • Singapore
    • Singapore Academy of Law Journal No. 1999, December 1999
    • 1 Diciembre 1999
    ...1996). Unreported judgment of Judith Prakash J. 98 [1987] 2 MLJ 146. 99 See below. 100 [1991] 3 MLJ 208, at 212. 101 [1992] 1 SLR 1. 102 [1993] 2 SLR 592. 103 Cited above. 104 [1993] 2 SLR 592, at pp 597—598. 105 See, for example, the cases mentioned in the preceding paragraph. 106 See the ......

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