Dismissed

Canara Bank v. Mysore Coffee Curing Works Ltd.

Karnataka HC16 Feb 2021WA/176/2020

Case brief

AI extract

What is this about?

Bank, a secured creditor, challenged the single judge's dismissal of its writ petition. Its appeal under Section 7(7) of the Payment of Gratuity Act against the Controlling Authority's order was time-barred beyond 120 days, and the Appellate Authority refused condonation. The Division Bench held the High Court cannot condone that delay under Articles 226/227 nor examine the original order in isola

What the court decided

AI extract

Canara Bank Vs Mysore Coffee Curing Works… — Labour and Industrial Disputes | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF FEBRUARY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MRS.JUSTICE M.G.UMA

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WRIT APPEAL NO.176 OF 2020(L-PG)

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BETWEEN:

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CANARA BANK CHIKKAMAGALUR MAIN BRANCH CHIKKAMAGALUR-577 101. REPRESENTED BY ITS MANAGER AND PA HOLDER MR.PRAVEEN KUMAR.

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... APPELLANT

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(BY SRI:HEMANTH R. RAO, ADVOCATE FOR SRI:RUKKOJI RAO H.S., ADVOCATE (PH))

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AND:

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MYSORE COFFEE CURING WORKS LTD., JYOTHINAGARA POST CHIKKAMAGALURU-577 102. REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR MR.V.RAMA RAO.

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MR.V RAMA RAO SON OF VENKATANARSAPPA AGED ABOUT 72 YEARS CHAIRMAN & MANAGING DIRECTOR MYSORE COFFEE CURING WORKS LTD.,

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JYOTHINAGARA POST CHIKKAMAGALUR-577 102.

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THE ASST.LABOUR COMMISSIONER & CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT CHIKKAMAGALUR DIVISION CHIKKAMAGALUR-577 101.

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THE DEPUTY LABOUR COMMISSIONER & APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT HASSAN REGION, ARLIKATTE ROAD HASSAN-573 201.

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SMT.KURVANGI LOLAMMA KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.DASARAHALLI SANNANANGAMMA WIFE OF SIDDAPPASETTY DASARAHALLI 577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.KURVANGI JAYAMMA WIFE OF RAMEGOWDA KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.KURVANGI JAYAMMA WIFE OF RAMEGOWDA KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.KURVANGI BHAGYA WIFE OF LATE.RANGASETTY KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.LINE LEELAVATHI WIFE OF LATE.HUCHAPPASETTY TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.BELUR VASANTHA WIFE OF SHIVANNA TAMIL COLONY CHIKKAMGALUR-577 102.

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SMT.BEEKANAHALLI RUDRANI WIFE OF MALLIKARJUNAPPA BEEKANAHALLI VILLAGE CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SMT.HOSAHALLI GANGAMMA WIFE OF CHANNABASAPPASETTY TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.KURVANGI PUSHPA WIFE OF SHANKARAPPA SHETTY TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.AMBALE NAGAMMA WIFE OF DEVARAJA TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.SHANKARAPURA MEENAKSHAMMA WIFE OF CHANNAYYA SHANKARAPURA, CHIKKAMAGALUR PIN-577 102.

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SMT.LINE SANNA PUTTAMMA WIFE OF NANJAPPA TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.NARIGUDDIHALLI INDIRA WIFE OF SHEKARAPPA NARIGUDDIHALLI CHIKKAMGALURU TALUK & DISTRICT PIN-577 102.

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SMT.KURVANGI GAYATHRI WIFE OF NAGAPPASETTY KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SRI.N.SEETHARAM SON OF NARAYANASWAMY NARIGUDDIHALLI CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SRI.BASAVARAJ SON OF VEEREGOWDA TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.BEEKANAHALLI SUSHEELA BEEKANAHALLI VILLAGE CHIKKAMAGALUR TALUK & DISTRICT. PIN-577 102.

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SMT.BEEKANAHALLI MAHADEVAMMA WIFE OF GURUSWAMI BEEKANAHALLI VILLAGE CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SMT.BEEKANAHALLI PARAVATHI WIFE OF SHADAKSHARI BEEKANAHALLI VILLAGE CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SMT.KEMPAMMA WIFE OF PUTTASWAMY TAMIL COLONY, CHIKKAMAGALUR PIN-577 102.

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SMT.NARAYANAMMA WIFE OF LATE.FAKIRA BEHIND JYOTHINAGARA CHIKKAMAGALUR - PIN-577 102.

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SMT.LINE LAKSHMAMMA WIFE OF LATE.LAKSHMAYYA NARIGUDDIHALLI CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SMT.H.P.BHAGIRATHI WIFE OF PUTTASWAMYGOWDA DODDAKURUBARAHALLI CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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SMT.HULIYAMMA WIFE OF HEMARAJA KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.KURAVANGI NARASAMMA WIFE OF HANUMANTHARAJU KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.LINE RUKMINI WIFE OF LAKSHMANAGOWDA TAMIL COLONY-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.LINE DEVI WIFE OF HANUMANTHASETTY KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.KURAVANGI SAKAMMA WIFE OF SANNASIDDAPPASETTY KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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SMT.LINE B SHARADA WIFE OF CHANDRA SETTY TAMIL COLONY CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.

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35.	SMT.KUPPENAHALLI SHARADA WIFE OF SHADAKSHARI BEEKANAHALLI VILLAGE CHIKKAMAGALUR TALUK & DISTRICT PIN-577 102.
36.	SMT.KURVANGI CHANNAMMA WIFE OF RANGAPPA KURVANGI VILLAGE-577 102. CHIKKAMGALUR TALUK & DISTRICT PIN-577 102.
37.	SRI.KUMAR
	SON OF OMKAR SETTY MARKET ROAD, CHIKKAMAGALUR PIN- 577 102.
38.	SRI.HARISH
	SON OF OMKARSETTY
	MARKET ROAD, CHIKKAMAGALUR PIN-577 102.
39.	SMT.LINE MEENAKSHI WIFE OF ERAPPA SINCE DEAD REPRESENTED BY HER LRS:
39(a)	SRI.ERAPPA SON OF LATE.SANNAPPA AGED ABOUT 55 YEARS
39(b)	SMT.BHAVANI DAUGHTER OF ERAPPA
	AGED ABOUT 27 YEARS
39(c)	SMT.NAGAVENI
	DAUGHTER OF ERAPPA
	AGED ABOUT 26 YEARS
39(d)	SMT.DEEPA
	DAUGHTER OF ERAPPA
	AGED ABOUT 25 YEARS

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39(c) SRI.RAGHU SON OF ERAPPA AGED ABOUT MAJOR

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ALL ARE LRS OF LATE MEENAKSHI & ARE RESIDING AT: # 108 K.M.ROAD, HOUSING BOARD JYOTHINAGAR CHIKKAMAGALUR-577 102.

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SMT.KURAVANGI LALITHA WIFE OF LOKASETTY KURVANGI VILLAGE-577 102. CHIKKAMAGALUR TALUK & DISTRICT.

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... RESPONDENTS

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(BY SRI:MISS.PARINA LALLA, ADVOCATE FOR SRI: H.N.NARENDRADEV, ADV FOR R1 & R2 (VC); SRI: K.V.NARAYANASWAMY, ADVOCATE FOR R5 TO R7, R9 TO R13, 16, 17, 21, 23, 24, 27, 28, 30,32,34,35,39(A) AND 40; SMT:VANI H., AGA FOR R3 & R4; R8,18,19,20,22,26,29,33,37,38, 39B,C,D & E ARE SD)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE FINAL ORDER DATED 24/01/2020 PASSED IN WRIT PETITION NO.35850/2016 BY LEARNED SINGLE JUDGE OF THE HON’BLE HIGH COURT OF KARNATAKA AND ALLOW THE WRIT PETITION AND GRANT SUCH OTHER RELIEFS AS DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE TOGETHER WITH COSTS.

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THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This intra-court appeal is directed against order

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dated 24/01/2020 passed in Writ Petition No.35850 of

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2016 by the learned Single Judge. By said order, the learned Single Judge has dismissed the writ petition holding that the appeal filed by the petitioner before the Appellate Authority was belated. Therefore, the Appellate Authority had rightly dismissed the appeal by issuing the endorsement dated 06/06/2016 stating that the delay beyond 120 days from the order of Original Authority (Controlling Authority) could not be condoned in view of Section 7(7) of the Payment of Gratuity Act, 1972 (hereinafter referred to as “the Act” for the sake of brevity).

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Briefly stated the facts are that, the appellant-

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Bank was impleaded as respondent No.2 before the Controlling Authority under the Act in a proceeding relating to the claim of workmen seeking payment of gratuity to them from their employer. The appellant-Bank, being a secured creditor, had sold the properties of the debtor/employer under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of

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Security Interest Act, 2012 (hereinafter referred to as “the SARFAESI Act” for the sake of brevity). The Controlling Authority had stated that, out of the sale proceeds, employees had to be paid gratuity under the provisions of the Act.

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Being aggrieved by the order of Controlling Authority dated 25/11/2015, the appellant-Bank filed an appeal under Section 7(7) of the Act before the Appellate Authority. The Appellate Authority issued an endorsement on 06/06/2016 stating that the appeal filed was belated/time barred as it ought to have been filed within a period of 60 + 60 = 120 days from the date of order of the Controlling Authority. Hence, there being delay of 54 days beyond 120 days, an endorsement was issued stating that there was no provision to condone the delay and the appeal could not be considered under the provisions of the Act.

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Being aggrieved by the endorsement dated 06/06/2016 issued by the Appellate Authority, the appellant-Bank assailed the said endorsement at Annexure-Z as well as the order of the Controlling Authority dated 25/11/2015 at Annexure-Y by filing the writ petition before this Court. The learned Single Judge, placing reliance on the judgment of Hon’ble Supreme Court and also Division Bench of this Court, dismissed the writ petition by holding that, there being no provision to condone the delay in filing the appeal by the Appellate Authority, in the writ petition, there could not be any power to condone of delay in filing the appeal and remanding the matter to the Appellate Authority. Being aggrieved by the order of the learned Single Judge, the Bank has preferred this appeal.

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We have heard Sri.Hemanth R.Rao, learned counsel for Sri.H.S.Rukkoji Rao for the appellant and Miss.Parina Lalla, learned counsel for Sri.H.N.Narendradev, for respondent Nos.1 and 2 and Smt.H.Vani, learned

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Additional Government Advocate for respondent Nos.3 and 4 and perused the material on record.

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Learned counsel for the appellant submitted that the Appellate Authority was not right in issuing the endorsement dated 06/06/2016 and thereby foreclosing the right to file appeal by the appellant-Bank herein. He submitted that the appellant-Bank was not a party to the original proceeding under the Act, but being aggrieved by the order of Controlling Authority dated 25/11/2015, the appeal was preferred under Section 7(7) of the Act. Instead of entertaining the appeal, endorsement dated 06/06/2016 was issued by the Appellate Authority stating that the appeal was filed beyond 120 days from the date of the impugned order and the same could not be entertained. He submitted that Annexure-Z dated 06/06/2016 was assailed in the writ petition. Further, the order passed by the Controlling Authority dated 25/11/2015 was also assailed as the Controlling Authority

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had no jurisdiction to pass such an order against the secured creditor, namely, the appellant-Bank.

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Learned counsel contended that the Bank, being the secured creditor, in order of recover the outstanding debt from respondent Nos.1 and 2 herein had sold certain immovable properties, but the Controlling Authority directed that out of the proceeds of the said sale, dues of the employees be paid under the provisions of the Act. He submitted that the Controlling Authority had no jurisdiction to direct the Bank, being the secured creditor, to discharge the dues of the debtors from the proceeds of the sale of the secured asset under the provisions of SARFAESI Act. Such being the case, learned Single Judge ought to have entertained the writ petition filed under Articles 226 and 227 of the Constitution of India, wherein order dated 25/11/2015 was also assailed, without taking into consideration the fact that the appeal filed by the appellant herein before the Appellate Authority was belated and thus time barred. He submitted that when the Original

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Authority, namely, the Controlling Authority in the instant case, acting under the provisions of the Act, had no jurisdiction to direct the secured creditor, namely, the appellant-Bank herein to discharge the dues of the respondents-employees out of the proceeds of the asset sold under the provisions of the SARFAESI Act, the writ petition filed under Articles 226 and 227 of the Constitution of India was maintainable. Hence, even without taking into consideration the fact that the appellant-Bank had resorted to the above proceedings could have independently considered the correctness or otherwise of the order of Controlling Authority dated 25/11/2015.

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In this context, learned counsel for the appellant placed reliance on the judgment of a co-ordinate Bench of this Court in the case of Practice Strategic Communications India Private Limited Vs The Commissioner of Service Tax, Bangalore [ILR 2016 KAR 4493], to contend that in the said judgment, reliance was placed on the decision of a Full Bench of Gujarat High

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Court in the case of Panoli Intermediate (India) (P) Ltd., Vs Union of India [ (2015) 51 GST 750 ] . Learned counsel for the appellant contended that the judgment of the co-ordinate Bench of this court referred to above may be followed in this case. That even if the appeal filed by the appellant-Bank before the Appellate Authority was time barred, nevertheless, independently the order of the Original Authority may be considered on merits and quashed. Learned counsel contended that the reason for saying so is that, the Original Authority i.e., the Controlling Authority had no jurisdiction whatsoever to pass the order under the provisions of the Act against the appellant-Bank and hence, the impugned order may be set aside and the matter may be heard on merits.

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Per contra, learned counsel for respondent Nos.1 and 2 supported the order of the learned Single Judge and submitted that, the fact that the appellant-Bank had resorted to the appellate remedy cannot be bypassed or ignored. The Bank did not approach this Court as

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against the order of Controlling Authority i.e., the Original Authority. Whatever may be the merits of the case, the fact remains that the appellant-Bank filed the appeal before the Appellate Authority which was time barred as it was belated and hence hit by Section 7(7) of the Act. The endorsement issued by the Appellate Authority, being in accordance with Section 7(7) of the Act, this Court, exercising jurisdiction under Articles 226 and 227 of the Constitution of India, cannot condone the delay in filing the appeal by the appellant-Bank in the absence of such provision being there under the Act and thereafter relegating the appellant to the Appellate Authority.

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Learned counsel further submitted that when once the appellant-Bank opted to file an appeal under the provisions of the Act, the same being belated, cannot now contend that the filing of the appeal before the Appellate Authority under the Act be ignored and the impugned order of the Controlling Authority be considered independently. Learned counsel submitted that unless the order of the

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Appellate Authority is set aside or quashed by this Court, the order of the Original Authority being the Controlling Authority cannot be interfered with straight away. In other words, learned counsel for respondent Nos.1 and 2 submitted that as long as the endorsement dated 06/06/2016 issued by the Appellate Authority cannot be interfered with by this Court by exercising the jurisdiction under Articles 226 and 227 of the Constitution of India, the order of the Controlling Authority or the Original Authority cannot be quashed. She submitted that there is no merit in the appeal and the same may be dismissed.

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Learned Additional Government Advocate appearing for respondent Nos.3 and 4 also endorsed the submissions of the learned counsel for respondent Nos.1 and 2 and contended that there is no merit in this appeal and the same may be dismissed.

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The detailed narration of facts and contentions would not call for reiteration except highlighting the fact as against the order of Original Authority, being the

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Controlling Authority, dated 25/11/2015, the appellantBank chose to file an appeal under Section 7 of the Act before the Appellate Authority. However, the said appeal was not filed in time in as much as it was filed beyond 120 days which was beyond the period prescribed under the provision. Therefore, endorsement dated 06/06/2016 was issued by the Appellate Authority stating, the appeal could not be entertained as it was belated and time barred. The same is at Annexure-Z which is assailed by the appellant in the writ petition. That apart, the appellant has also assailed order dated 25/11/2015 passed by the Controlling Authority. Learned counsel for the appellant-Bank placed heavy reliance on the aforesaid judgment of co-ordinate Bench of this Court to contend that even while exercising power under Articles 226 and 227 of the Constitution of India, the delay in filing the appeal may not be condoned in the Writ Petition, but still, the correctness or otherwise of the order passed by the Original Authority, namely, the Controlling Authority under the Act dated 25/11/2015 may be examined. Though the said argument is very

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attractive, nevertheless, we need to consider the same in light of Section 7(7) of the Act and the judgments of the Hon’ble Supreme Court.

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The provision under consideration is Section 7(7) of the Act, which reads as under:

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“Section 7:Determination of the amount of gratuity:-

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(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf.

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Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.

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Provided further that no appeal by an employer shall be admitted unless at the time of

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preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate authority such amount.”

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On a reading of the said section, it is clear that the period of limitation prescribed is sixty (60) days from the date of receipt of the order to file the appeal before the Appellate Authority. However, under the proviso further period of sixty days is provided for preferring the appeal beyond the earlier period of sixty days, if the Appellate Authority is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days. Thus, the expression “extend the said period by a further period of sixty days” which is significant for the purpose of this case has to be interpreted. Therefore, on a plain reading of the same means the limitation period which is initially sixty days, could be

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extended only for a further period of sixty days and not any further.

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In this context, there are a catena of judgments of the Hon’ble supreme Court in which it is categorically stated that if the appeal is not filed within the initial prescribed period of limitation or the extended period, then there is no power to condone the delay, if such an appeal is filed beyond the extended period. The reason for saying so is on the basis of sub Section (2) of Section 29 of the Limitation Act, 1963, (hereinafter referred to as “the Limitation Act” for the sake of brevity), which is a provision regarding the applicability of the provisions of the Limitation Act, inter alia, for appeals. Though the same is in a general statute dealing with limitation, yet, sub Section (2) of Section 29 itself states that if there is any special or local law which prescribes different period of limitation, then the said special or local law would apply and the provisions of Sections 4 to 24 inclusive of the Limitation Act would apply only in so far as

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and to the extent to which they are not expressly excluded by such special or local law. For the purpose of immediate reference, sub Section (2) of Section 29 of the Limitation Act, is extracted as under:

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“Section 29: Savings :-

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1) xxx

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2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”

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The said provision has been the subject matter

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of interpretation in several cases. It is in the context of

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right to file an appeal and the conditions which could be imposed in filing the appeal. It is a settled position of law that the right to file an appeal is a statutory right or a creature of the statute and no other right to file an appeal can be recognized de hors a statute. A right of appeal is a creature of statute and no appeal can be filed unless it is clearly expressed in terms of a statute. Further, the right of appeal is a substantive right and not merely a matter of procedure. It is a vested right which can be exercised when the adverse judgment is pronounced. Though it exists from the date the lis commences, such right is governed by the law prevailing on the date of the institution of the suit or proceeding and not by the law that prevails on the date of its decision or on the date of the filing of the appeal, vide Garikapati Veeraya vs. N.Subbaiah Chaudhry [ AIR 1957 SC 540] (Garikapati Veeraya).

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17. In Anant Mills Company Limited vs. State

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of Gujarat [ AIR 1975 SC 1234] (Anant Mills Company) , it has been held that though the right of appeal is a

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creature of a statute, there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.

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There is a fundamental distinction between a

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right to file a suit and right to file an appeal which has been explained by Y.V.Chandrachud J. (as he then was) in the case of Ganga Bai vs. Vijay Kumar [(1974)2 SCC 393] (Ganga Bai) as under:

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“There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an

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appeal for its maintainability must have the clear authority of law.”

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On the question of a party having a right to file an appeal, one could usefully recall His Lordship Krishna Iyer J’s observation in Sita Ram vs. State of U.P. [(1979) 2 SCC 656] (Sita Ram), wherein he has observed that “an appeal is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below”. “In an appeal, strictly the question is whether the order of the court from which the appeal is brought was right on the materials which that court had before it”... “A right of appeal, where it exists, is

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a matter of substance, and not of procedure. Thus, the right of appeal is paramount, the procedure for hearing canalises so that extravagant prolixity or abuse of process can be avoided and a fair workability provided. Amputation is not procedure while pruning may be. That an appeal is a remedial right and if the remedy is reduced to a husk by

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procedural excess, the right becomes a casualty. That cannot be.

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With regard to filing of a suit or an appeal within the prescribed period of limitation, in N.Balakrishnan v. M.Krishnamurthy , [ (1998) 7 SCC 123] ( N.Balakrishnan) the Hon’ble Supreme Court has held as under:

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“ 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on

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public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

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21. In State of Madhya Pradesh vs. Pradeep

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Kumar, [(2000) 7 SCC 372] (Pradeep Kumar) on the question of a belated appeal being unaccompanied by an application seeking condonation of delay and the consequences of not filing the said application along with the memorandum of appeal and the fact that the said defect is curable, the Hon’ble Supreme Court has observed as under:

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“12. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant

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litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.”

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22. Sub-Section (2) of Section 29 of the Limitation

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Act states that where any special or local law for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule (to the Limitation Act), the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24

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(inclusive) shall apply only insofar as, and to the extent to which, they are “not expressly excluded by such special or local law”. What is significant in sub-Section (2) of Section 29 of the Limitation Act are: i) prescription of a period of limitation under any special law or local law different from the period prescribed by the Schedule under the Limitation Act and ii) in such a case, the period of limitation prescribed under the special or local law shall be deemed to be the period prescribed for the purpose of Section 3 of the Limitation Act and iii) Section 3 of the Limitation Act shall apply accordingly.

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23. Hukumdev Narain Yadav vs Lalit

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Narainmishra, [(1974) 2 SCC 133] (Hukumdev Narain Yadav) is a matter which arose under the Representation of People Act, 1951. Under Section 81 of the said Act, a period of 45 days from the date of the election of a returned candidate is the limitation time prescribed within which an election petition calling in question any election on one or more grounds specified in sub-Section (1) of

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Sections 100 and 101 has to be presented to the High Court. In the said case, the election petition had been presented beyond the period of 45 days and had been dismissed. One of the questions considered was, by virtue of Section 29(2) of the Limitation Act, whether the provisions of Sections 4 to 24 of the said Act were applicable to election petitions and if so, whether Section 5 of the Limitation Act was applicable. Also, whether the facts of the case therein warranted condonation of delay. Thus, unless Section 5 of the Limitation Act was made applicable, the discretion of the Court to extend the time would not be available.

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In the said case, a comparison of Section 29(2) of the Limitation Act, 1908 with Section 29(2) of the Limitation Act, 1963 was made and the question was whether Section 5 of the Limitation Act was applicable. It was observed that even if the Limitation Act was applicable to election petitions under the Representation of the People Act, 1951, whether Section 5 thereof particularly was

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excluded from application in the case of an election petition. It was contended in the said case that the words ‘expressly excluded’ would mean that there must be an “express reference” made in a special or local law to the specific provision of the Limitation Act of which the operation is to be excluded. But, the Hon’ble Supreme Court observed that what has to be seen is whether the scheme of the special law and the nature of remedy provided therein or such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act and particularly Section 5 thereof, are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special law. That in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-

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matter and scheme of the special law would exclude their operation. It was contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But the same was not accepted by the Hon’ble Supreme Court as it observed that the intent of Section 29(2) of the Limitation Act must be noted. That Section 29(2) of the Limitation Act provides that Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law. Ultimately, it was held on a consideration of the scheme of the provisions concerning the filing of election petition under the Representation of the People Act, 1951, that Section 5 of the Limitation Act did not govern the filing of the election petition or their trial and hence, the application

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filed for condonation of delay did not warrant any consideration.

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25. In Union of India vs. Popular Construction

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Company,[(2001) 8 SCC 470] (Popular Construction Company) the question that arose for determination was whether Section 5 of the Limitation Act was applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Arbitration Act”). Section 34 of the Arbitration Act states that an application seeking setting aside an arbitral award may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal. The proviso thereto further states that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application

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within a further period of thirty days, “but not thereafter”. Interpreting the expression “but not thereafter” used in the proviso to sub-section (3) of Section 34, the Hon’ble Supreme Court held that the said phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act and would, therefore, bar the application of Section 5 of the Act. It was held that the expression “but not thereafter” clearly meant that an application to set aside the award beyond the extended period under the proviso to Section 34(3) of the Arbitration Act was sufficient indication of the exclusion. In the circumstances, after going through the history and scheme of the Arbitration Act, it was held that Section 5 of the Limitation Act was not applicable to an application challenging an award under Section 34 of the said Act beyond the extended period and the question was answered in the negative.

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26. Nasiruddin vs. Sita Ram Agarwal , [(2003)

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2 SCC 577] ( Nasiruddin ) has also been cited by the

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respondent. In the said case, the controversy was as regards the applicability of Section 5 of the Limitation Act in the matter of default in deposit of rent under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The said Section states that a tenant is required to deposit the amount of rent determined by the Court under sub-section (3) of the said section within 15 days of the date of determination or within such further time not exceeding three months, as may be extended by the Court. The question was as to whether the provision is directory or mandatory would inevitably depend upon the language employed therein. It was held that Section 5 of the Limitation Act had no application as the deposit of rent did not require any application to be made and therefore, Section 5 could not be extended where the default took place in complying with Section 13(4) of the said Act.

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27. In Fairgrowth Investments vs. Custodian,

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[ (2004) 11 SCC 472] ( Fairgrowth Investments) the question regarding limitation arose in the context of

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Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992. Section 3(3) of the said Act empowers the custodian to notify the name of the persons in the official gazette involved in any offence relating to transactions and securities for the specified period. From the date of such notification, properties (both movable and immovable) belonging to such person, stood attached under Sub-section (3) of Section 3. Section 4(2) of the said Act permits any person aggrieved by a notification issued under Section 3(2) to file an objection within 30 days of its issuance. Question arose whether the said period of limitation of 30 days prescribed under Section 4(2) of the said Act was mandatory, or could be extended by resort to Section 5 of the Limitation Act. The Supreme Court held that the period of limitation prescribed in Section 4(2) of the said Act was mandatory and invoked Section 29(2) of the Limitation Act to exclude the application of Section 5 of the Limitation Act by observing that the Act in question was a special statute. The Supreme Court also observed that in view of express provision for condonation of delay,

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coupled with a non-obstante provision which states that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any law or in any decree or order of any court, tribunal or other authority, excluded application of Section 5 to Section 42 of the Limitation Act to the provisions of the said Act.

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28. Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur, [(2008) 3 SCC 70]

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( Singh Enterprises) considered the expression “sufficient cause” and elucidated on the same. The said expression is found in Section 5 of the Limitation Act and also other special statutes which prescribe a specific period of limitation and thereafter, a further grace period within which an appeal or any other proceedings could be filed. The Hon’ble Supreme Court observed that sufficient cause therein means adequate or enough. There cannot be any straight jacket formula for accepting or rejecting the

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explanation offered for condoning the delay caused in taking steps. It was also observed that when a statute prescribes a particular period of limitation, the Court cannot direct condonation of delay beyond that specific period; in such an event, the specific provision providing for limitation would be rendered otiose.

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29. Commissioner of Customs, Central Excise, Noida vs. Punjab Fibres Limited, Noida , [(2008) 3

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SCC 73) ( Punjab Fibres Limited) also considered the question whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Central Excise Act, 1944. The said provision prescribes a period within 180 days of the date upon which the Commissioner of Central Excise or any other party is served with notice of an order under Section 35-C passed on or before the 1st day of July 1999, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. It was observed that the High Court was justified

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in holding that there was no power for condonation of delay in filing the reference application as it was made beyond the prescribed period of limitation under the said provision.

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Good Earth Steels (P) Limited vs. Commissioner of Central Excise, [(2008) 3 SCC 77] (Good Earth Steels) also follows earlier judgment in Punjab Fibres Limited.

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31. Consolidated Engineering Enterprises vs.

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Prl. Secretary, Irrigation Department, [(2008) 7 SCC

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169] (Consolidated Engineering Enterprises ) is another judgment of a three Judge Bench of the Hon’ble Supreme Court on the proviso to Section 34(3) of the Arbitration and Conciliation Act 1996. In the said case, after referring to section 34 of the Arbitration Act, and considering the same in light of Section 29(2) of the Limitation Act, it was observed that when any special statute prescribes certain period of limitation as well as provision for extension upto specified time limit on sufficient cause being shown, the

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period of limitation prescribed under the special law shall prevail and to that extent, the provisions of Limitation Act shall stand excluded. This is because of the intention of the Parliament in enacting sub-section (3) of Section 34 of the Act of 1996. That an application for setting aside the award must be made within three months and the period can be further extended on sufficient cause being shown by another period of thirty days, but not thereafter. Hence, Section 5 of the Limitation Act is inapplicable as it stands excluded under Section 29(2) of the Limitation Act. Further, it was also observed that even though Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Arbitration and Conciliation Act for setting aside the award, one need not conclude that Section 14 of the Limitation Act would also be inapplicable to an application filed under Section 34 of the Act of 1996.

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(a) In the said case, His Lordship, Raveendran J. gave a separate but concurring opinion. His Lordship referred to Section 43 of the Arbitration Act to hold that Section 43

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makes an express reference to the Limitation Act both in the Court and in arbitration. That there is also no express exclusion by an application of the provision of the Limitation Act to the proceedings under the Arbitration Act. But, there are some specific departures from the general provisions of Limitation Act, such as, the proviso to Section 34(3) and sub-sections (2) to (4) of Section 43 of the Act. His Lordship observed that where the schedule to the Limitation Act prescribes a period of limitation for appeals or applications to any court, and the special or local law provides for filing of appeals and applications to the Court, but does not prescribe any period of limitation in regard to such appeals or applications, the period of limitation prescribed in the Schedule to the Limitation Act will apply to such appeals or applications and consequently, the provisions of Sections 4 to 24 will also apply. But, where the special or local law prescribes for any appeal or application, a period of limitation different from the period prescribed by the Schedule to the Limitation Act, then the provisions of Section 29(2) of the Limitation Act would be

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attracted. In that event, the provisions of Section 3 of Limitation Act will apply, as if the period of limitation prescribed under the special law was the period prescribed by the Schedule to Limitation Act, and for the purpose of determining any period of limitation prescribed for the appeal or application by the special law, the provisions contained in Sections 4 to 24 will apply to the extent to which they are not expressly excluded by such special law. That the object of Section 29(2) of the Limitation Act is to ensure that the principles contained in Sections 4 to 24 of Limitation Act apply to suits, appeals and applications filed in a court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Limitation Act, except to the extent of express exclusion of the application of any or all of those provisions.

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(b) In this context, it was clarified that the provisions of the Limitation Act would not apply to appeals or applications before Tribunals, unless expressly provided.

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This is because, the Schedule to the Limitation Act prescribes the period of limitation only to proceedings in Courts and not to any proceedings before any Tribunal or quasi-judicial authority. Therefore, it was held that the provisions of the Limitation Act could apply to all proceedings under the Arbitration Act both in Court and in arbitration except to the extent expressly excluded by the provisions of the Arbitration Act. This was because of the express reference to applicability of the Limitation Act to the proceedings in Court and Arbitral Tribunal under Section 43 of the Arbitration Act.

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whether under the proviso to Section 34(3) of the Arbitration Act, Section 14 of Limitation Act was excluded. Section 14 of Limitation Act relates to exclusion of time when proceeding bona fide in a court without jurisdiction. While considering Section 14 of the Limitation Act in light of Section 34(3) of the Arbitration Act and the proviso thereto, it was observed that the use of the words “but not

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thereafter” in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension cannot be beyond thirty days. Differentiating between the proviso to Section 34(3) of Arbitration Act and Section 5 of the Limitation Act, it was observed that they both vest a discretion in a court to extend the prescribed period of limitation if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed period. Section 5 of Limitation Act does not place any outer limit in regard to the period of extension, whereas the proviso to sub-section 3 of section 34 of the Arbitration Act places a limit on the period of extension of the period of limitation. It differs in regard to period of extension and it has the effect of excluding Section 5 alone of the Limitation Act. Hence, it was held that having regard to Section 29(2) of the Limitation Act, Section 14 of the Act would be applicable to an application under section 34(1) of Arbitration Act. Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the

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limitation period of three months for the application under Section 34(1) of the Arbitration Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide and with due diligence. While holding so, the judgment in State of Goa vs. Western Builders [(2006) 6 SCC 239] (Western Builders) was approved.

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In Western Builders after referring to the scheme of the provisions under the Arbitration Act, the Hon’ble Supreme Court held that wherever the Parliament wanted to give power to the Court, it has been incorporated in the provisions of the Arbitration Act. Thus, no further power would lie in the hands of the Court so as to enable to exclude the period spent in prosecuting a remedy before another forum, but it was further emphasized that there was no prohibition incorporated in the Arbitration Act for curtailing the power of the Court under Section 14 of the Limitation Act. That much would

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depend upon the words of the statute and not general principles applicable. That by virtue of Section 43 of the Arbitration Act, the Limitation Act applies to the proceedings under the former Act and the provisions of the Limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Arbitration Act. Since, there is no prohibition provided under Section 34, there is no reason why Section 14 of the Limitation Act should not be read into the Arbitration Act, which would advance the cause of justice. Thus, if a statute is silent and if there is no specific provision, then the statute should be interpreted which advances the cause of justice. The same view was reiterated in Coal India Limited vs. Ujjal Transport Agency [(2011) 1 SCC 117] (Ujjal Transport Agency).

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In Commissioner of Central Excise &

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Customs vs. Hongo India (P) Ltd., [(2009) 5 SCC 791] (Hongo India) the question for consideration was whether the High Court had the power to condone the

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delay in presentation of the reference application under the un-amended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period by applying Section 5 of the Limitation Act. Section 35-H(1) states that the Commissioner of Central Excise or other party, within a period of 180 days of the date upon which he is served with notice of an order under Section 35C, direct the Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. In the said matter, the Commissioner of Customs and Central Excise had approached the High Court by way of a reference application beyond the prescribed period of 180 days. After referring to the scheme of the Central Excise Act (special law) and the nature of remedy provided therein, it was held that the said enactment was a complete Code by itself which alone should govern the several matters provided by it. It is observed there that if, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the

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provisions of the Act. It was further observed that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act has to be judged not from the terms of the Limitation Act but by the provisions of the special enactment (Central Excise Act in the said case) relating to filing of reference application to the High Court. After considering the scheme of the Central Excise Act, 1944, the Hon’ble Supreme Court held that the time limit prescribed under Section 35-H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It was held that by giving a liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. Hence, the application filed seeking condonation of delay in filing the reference application

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under Section 5 of the Limitation Act was held to be rightly dismissed by the Allahabad High Court.

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34. Smt. Hetal Alpesh Muchhala vs. Adityesh

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Educational Institute & others , [(2009) SCC Online Bom.1454] ( Smt. Hetal Alpesh Muchhala ) is a case which took into consideration Section 10F of the Companies Act, 1956 and the question which arose for determination was whether Section 5 of the Limitation Act was applicable to an appeal filed under Section 10F of the Companies Act, 1956. Section 10F, inter alia, states that any person aggrieved by any decision or order of the Company Law Board may file an appeal to the High Court within sixty days from the date of communication of the decision or order by the Company Law Board to him on any question of law arising out of such order. The proviso states that if the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period (of sixty days), it could allow the appeal to be filed within a further period “not exceeding sixty days”. It was

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observed that the Companies Act,1956 being a special enactment and the Company Law Board being a special Tribunal, there was curtailment of the Court’s power by the exclusion of operation of Section 5 of the Limitation Act, 1963, if the appeal was filed beyond 120 days.

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In Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission and others, [(2010) 5 SCC 23] (Chhattisgarh State Electricity Board) the question was whether Section 5 of the Limitation Act, 1963 could be invoked by the Hon’ble Supreme Court for allowing the aggrieved persons to file an appeal under Section 125 of the Electricity Act, 2003 after more than 120 days from the date of communication of the decision or order of the Appellate Tribunal for Electricity. Section 125 of the Electricity Act, 2003 states that any person aggrieved by any decision or order of the appellate tribunal, may file an appeal to the Supreme Court, within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him, on

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any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (5 of 1908). The proviso states that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

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After considering Section 29(2) of the Limitation Act in light of Section 125 of the Electricity Act, the Hon’ble Supreme Court considered the scheme of Electricity Act and observed that it is a self-contained comprehensive legislation and a special adjudicatory forum i.e., Tribunal has been established to deal with a grievance

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of any person who may be aggrieved by an order of an adjudicating officer or of an appropriate Commission. That the Electricity Act is a special legislation within the meaning Section 29(2) of the Limitation Act and Section 3 of the Limitation Act would apply as if such period was the period prescribed by the schedule and provisions contained in Section 4 to 24 (inclusive) shall apply for the purpose of

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determining any period prescribed for any suit, appeal or application, unless they are expressly excluded by a special or local law. After referring to certain decisions, the Hon’ble Supreme Court distinguished the said case from Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker,[(1995) 5 SCC 5] (Mukri Gopalan) and held that Section 5 of the Limitation Act cannot be invoked by the Hon’ble Supreme Court by entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. That any other interpretation would defeat the object of the legislation, namely to provide special limitation for filing an appeal against the decision or order of the Tribunal or otherwise proviso to Section 125 would then become nugatory.

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The Hon’ble Supreme Court then went on to consider the question as to what was the date of communication of the decision or order for the purpose of Section 125 of the Electricity Act in the said case. In that context, Harish

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Chandra Raj Singh vs. Land Acquisition Officer, [AIR 1961 SC 1500] ( Harish Chandra Raj Singh ) was referred to in the context of the provisions of the Land Acquisition Act, 1894 and as to whether an award made under the aforesaid Act can be treated to have been communicated on the date of its making. It was held that the period of limitation for seeking a reference would commence from the date the award was made known to the party under Section 12(2) of the said Act. It would be useful to extract paragraph 6 of Harish Chandra Raj Singh:

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“6. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element

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which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair-play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either

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communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words ‘from the date of the Collector's award’ used in the proviso to Section 18 in a literal or mechanical way.”

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Ketan vs. Special Director, Directorate of Enforcement and another, [(2011) 15 SCC 30] (Ketan) raised the question, as to, whether, the High Court could entertain an appeal under Section 35 of the Foreign Exchange Management Act, 1999, from an order of the Appellate Tribunal beyond 120 days. Section 35 of the said Act states that any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of the said order. The proviso states that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it

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to be filed within a further period not exceeding sixty days. In the said case, the applicability of Section 14 of the Limitation Act also came up for consideration. It was held that Section 5 of the Limitation Act could not be invoked or otherwise, it would tantamount to amendment of the legislative mandate by which the special period of limitation has been prescribed. But, the benefit of Section 14 of the Limitation Act was not excluded. Hence, it could be available where an aggrieved party may have prosecuted with due diligence a remedy before a wrong forum, but on facts, the benefit of Section 14 of the Limitation Act was not made available to the appellant therein.

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38. In M.P. Steel Corporation vs. C.C.E.,

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[(2015) 7 SCC 58] (M.P. Steel Corporation) it was held that Section 14 of the Limitation Act contains a principle based on advancing the cause of justice, it would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which

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ultimately end without a decision on the merits of the case. The same has been applied to the provisions of Arbitration Act which also contains a provision similar to Section 74 of 2013 Act.

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In Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited and Others, [(2017) 5 SCC 42] (ONGC Limited) while considering Section 125 of the Electricity Act, 2003, the Hon'ble Supreme Court held, when there is a statutory command by the legislation as regards the limitation, there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy. That when there is a special adjudicatory forum meant for expeditious decision on the grievance of a person, the special legislation prescribing a particular limitation period has a binding effect and the same has to be followed, regard being had to its mandatory nature. Therefore, it is equivalent to Section 3 of the Limitation

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Act. Hence, the delay cannot be condoned by taking recourse to Article 148 of the Constitution.

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40. Patel Brothers vs. State of Assam [(2017)

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2 SCC 350 (Patel Brothers) considered Sections 81 and 84 of the Assam Value Added Tax Act, 2003 (Assam VAT Act) and Section 5 read with Section 29(2) of the Limitation Act, in the matter of delay in filing a revision petition and condonation of the same. The question for determination was whether Section 5 of the Limitation Act was applicable in respect of a revision petition filed in the High Court under Section 81 of the Assam VAT Act. Section 81 of the Assam VAT Act states that any dealer or other person, who is dissatisfied with the decision of the Appellate Tribunal, or the Commissioner may, within sixty days after being notified of the decision of the Appellate Tribunal, file a revision to the High Court, and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings. Section 84 of the Assam VAT Act states that in computing the period of

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limitation under that Chapter, the provisions of Sections 4 and 12 of the Limitation Act, 1963 shall, so far as may be, apply. The Hon'ble Supreme Court held, on a scrutiny of the scheme of the VAT Act, it showed that it is a complete Code by not only laying down the forum but also prescribing the time-limit within which each forum is competent to entertain the appeal or revision. The underlying object of the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made thereunder. The fact that the period of limitation described therein has been equally made applicable to the assessee as well as the Revenue lent ample credence to such a conclusion. Therefore, it was held that the application of Section 5 of the Limitation Act to a proceeding under Section 81(1) of the VAT Act was excluded by necessary implication, by virtue of the language employed in Section 84 of the said Act.

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41. Bengal Chemists and Druggists

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Association vs. Kalyan Chowdhury, [(2018) 3 SCC

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41] (Bengal Chemists) is a case which arose under Sections 421(3) and 433 of the Companies Act, 2013 in the context of limitation period of forty-five (45) days prescribed in Section 421(3) plus additional forty-five (45) days in its proviso, to file an appeal from the orders of the Tribunal. Section 421(3) speaks that every appeal under Section 421(1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form and accompanied by such fees as may be prescribed. The proviso states that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 states that the provisions of the Limitation Act shall, as far as may be, apply to proceedings or appeals before the

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Tribunal or the Appellate Tribunal, as the case may be. In the said case, the Hon'ble Supreme Court while distinguishing Partap Singh vs. Directorate of Enforcement, [(1985) 2 SCC 72] which dealt with Section 37(2) of the Foreign Exchange Regulation Act, 1973 and Mangu Ram vs. MCD, [(1976 1 SCC 392] and by following other decisions such as in the case of Popular Construction Company, ONGC Limited and Chhattisgarh State Electricity Board, held that Section 421(3) of the Companies Act, 2013 does not merely contain the initial period of 45 days being for filing an appeal, but also goes on to state that another period of 45 days, being a grace period, given by the Legislature cannot be exceeded, provided sufficient cause is made out within the aforesaid grace period to entertain the appeal. That the grace period of 45 days, being a special in-built kind of Section 5 of the Limitation Act, has been incorporated. It is under a special statute namely, Companies Act, 2013, which means that beyond the second period of 45 days, there can be no further condonation of delay. Emphasis was laid on the

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expression "not exceeding 45 days" in the proviso to Section 421(3) of the Companies Act, 2013, to state that it would have the same effect as the expression "but not thereafter" in the proviso to Section 34(3) of the Arbitration Act.

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In Nasir Ahmmed vs. National Investigation

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Agency, [(2015) 3 KLT 320] (Nasir Ahmmed), the controversy revolved on the question whether an appeal under Section 21 of the National Investigation Agency Act, 2018 (NIA Act) could be validly filed before the High Court after the expiry of ninety days from the date the judgment or sentence or order appealed from and whether the High Court could condone the delay in filing the appeal under Section 5 of the Limitation Act. Section 21(1) of the NIA Act states that notwithstanding anything contained in the Code, an appeal shall lie from any judgment/sentence or order, not being an interlocutory order of a special Court, to the High Court both on facts and on law. Sub-section (5) states that every such appeal under this Section shall be

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preferred within a period of thirty days from the date of the judgment, sentence or order appealed from; provided that the High Court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days. The Section further provides that no appeal shall be entertained after the expiry of the period of ninety days. The Division Bench of the Kerala High Court, on a reading of the scheme of the NIA Act and in particular, Section 21 of the said Act, held that the High Court had no jurisdiction to condone the delay in filing the appeal beyond the period of ninety days. It was observed that the power of the High Court under the first proviso to sub-section (5) of Section 21 of the said Act was curtailed and a further restriction in the second proviso thereto was a clear indication that the High Court cannot exercise the power under Section 5 of the Limitation Act to condone the delay. Hence, there was an express exclusion of Section 5 of the Limitation Act as contemplated under Section 29(2) thereof. In the said case, there was delay of

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164 days in filing the appeal and the appeal was dismissed as not maintainable.

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43. Farhan Shaikh vs. State (National

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Investigation Agency), [(2019) SCC Online Del. 9158] (Farhan Shaikh) is also a matter which arose under Section 21 of the NIA Act, but the Division Bench of the Delhi High Court after considering the case regarding the delay in filing the appeal noted that the appellant therein had sought condonation of delay of 314 days in filing the appeal and further delay of 44 days in re-filing the appeal. It was held that the appellant had proved sufficient cause for the delay in filing and re-filing the appeal and condoned the same. Further, this judgment is contrary to the judgment of the Kerala High Court where the delay of 164 days in filing the appeal was not condoned and the appeal was dismissed as not maintainable.

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The Hon'ble Supreme Court in Abdul Ghafoor

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and Another v. State of Bihar , [(2011) 14 SCC 465] (Abdul Ghafoor) observed that the law of limitation indeed

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must get due respect and observance by all courts. But in cases of conviction and imposition of sentence of imprisonment, the court must show far greater indulgence and flexibility in applying the law of limitation than in any other kind of case.

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In Simplex Infrastructure Limited vs. Union of India [(2019) 2 SCC 455] (Simplex Infrastructure Limited) also it has been held that Section 5 of the Limitation Act has no application to a suit /application filed under Section 34 of the Arbitration Act. But Section 14 of the Limitation Act applies to Section 34 of the Arbitration Act. In the said case, it was held that the High Court was not justified in condoning the delay of 514 days in filing the application (suit) under Section 34(3) of the said Act.

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The judgments of the Hon’ble Supreme Court referred to above are having regard to the object and purpose of limitation in filing the appeal. In this regard, reliance could be placed on paragraphs 12 and 13 of the

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decision in Basavaraj Vs Land Acquisition Officer

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[(2013) 14 SCC 8 (Basavaraj ), which read as under:

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“12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

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13. The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have

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not been agitated unexplainably and have from lapse of time become stale.

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According to Halsbury's Laws of England, Vol. 28, p.266:

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"605. Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence".

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An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence' or laches.

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47. Despite the overwhelming judicial precedent

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referred to above, learned counsel for the appellant placed

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reliance on the judgment of co-ordinate Bench of this Court in the case of Practice Strategic Communications India Private Limited (supra) , to contend that in the said judgment, reliance was placed on a Full Bench decision of Gujarat High Court in the case of Panoli Intermediate (India) (P) Ltd., wherein the court considered the following questions which were referred to it, at para 31 of the said judgment and observed as under:

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“31. We may now proceed to answer the questions

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1) Question No.1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days.

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2) The second question is answered in negative to the extend that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal.

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3) On the third question, the answer is in affirmative, but with the clarification that-

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A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that

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A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or

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A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or

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A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified.

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(B) Resultantly, there is failure of justice or it has resulted into gross injustice.

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We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial

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conscience enriched by judicial experience and practical wisdom of the judge.”

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Following the aforesaid judgment, a co-

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ordinate Bench of this Court held that even though the appeal filed under Section 35 of the Central Excise Act, 1944, was belated and hence the writ would not lie for condonation of delay in filing the appeal, nevertheless, the power under Articles 226 of the Constitution of India could be exercised to consider the correctness or otherwise of the order passed by the Original Authority under the circumstances stipulated above. Therefore, while considering the case on the aforesaid premise, the coordinate Bench of this Court granted relief by setting aside the order impugned in that case under the provisions of Central Excise Act, 1944.

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As against the aforesaid judgment, in the judgment of Full Bench of Punjab and Haryana High Court in the case of State of Haryana Vs Hindustan Machine Tools Limited and Others [AIR 2015 Punjab and

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Haryana 45], the question considered was, whether, when the appeal filed before the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) as against the order of Board of Industrial and Financial Reconstruction (BIFR) being time barred as filed beyond the extended period of permissible limitation, could be examined on merits. The Full Bench of Punjab and Haryana High Court after placing reliance on the judgments of the Hon’ble Supreme Court referred to above, held as follows:

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“17. In view of the above, we, thus, conclude that Section 5 of the 1963 Act cannot be pressed into service in aid of a belated application under Section 25(1) of the SICA seeking condonation of delay beyond 15 days prescribed there under. Accordingly, Issue No.(i) is answered in the negative and it is held that the appellate authority lacks jurisdiction to condone the delay in filing the appeal under Section 25(1) of the SICA beyond the period prescribed there under and the provisions of Section 5 of 1963 Act are excluded from its

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applicability beyond 60 days enumerated in the provision.

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18. The answer to the first issue being in the negative, inevitably, the scope of judicial review under Articles 226/227 of the Constitution of India is required to be considered.

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19. The power conferred under Articles 226/227 is designated to effectuate the law, to ensure that rule of law is enforced and the statutory authorities and other organs of the State act in accordance with law. It is not to be invoked whereby authorities are directed to act contrary to law. Wherever, the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. It is for the legislature to prescribe the limits or not to do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India would amount to doing violence to the statutory

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provision and rendering the same otiose. In other words, the legislative intent is clear that the Parliament never intended that delay beyond specified period in filing the appeal could be condoned. It is not for the High Court to re-write the statute in the garb of exercise of its jurisdiction under Articles 226/227 of the Constitution. The view which has been expressed by us herein above, is supported by various judicial precedents.

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20. The Supreme Court in M/s Nitco Tiles Limited vs. Gujarat Ceramic Floor Tiles Mfg. Assn. And others, 2005(12) SCC 454 concluded as under:

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“If the reasons given by the High Court were to be accepted as a valid basis for exercise of its judicial discretion to entertain the writ petition in its extra ordinary jurisdiction under Article 226 of the Constitution, then the provisions for appeal against the order passed by the designated authority in respect of antidumping issues would be rendered otiose and a person aggrieved by the final finding of the designated authority could, despite the express provision of Section 9(C) of the Customs

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Tariff Act, invoke the writ jurisdiction with impunity.”

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The Full Bench also considered the judgments of the Kerala High Court, Madras High Court and Bombay High Court as well as another judgment of the Hon’ble Supreme Court in the case of Union of India and another Vs Kirloskar Pneumatic Company Limited [1994 (4) SCC 453], wherein it has been observed as under:

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“Yet the question is whether it is permissible for the High Court to direct the Authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law.”

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51. The Full Bench of Punjab and Haryana High

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Court ultimately observed that the High Court, in exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, cannot direct the authority under the statute to ignore or act contrary to the express provisions of law. Equally, it would also not be appropriate to exercise extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India by the High Court to condone the delay beyond the maximum period prescribed by law and direct the Appellate Authority to hear the appeal on merits. Thus, Section 5 of the Limitation Act, 1963 cannot be pressed into service in aid of a belated application under Section 25(1) of the SICA seeking condonation of delay beyond the period prescribed thereunder. Thus, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India cannot condone the delay in filing the belated appeal and relegate the petitioner to the Appellate Authority so as to consider the appeal on merits.

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We are in complete agreement with the opinion of Full Bench of Punjab and Haryana High Court. However, learned counsel for the appellant-Bank was persistently persuading us to follow the judgment of the co-ordinate Bench of this Court which followed the Full Bench of Gujarat High Court and in that regard, submitted that the prayers sought by the appellant-Bank could have been segregated and writ petition could have been heard by the learned Single Judge on its merits, only in so far as the original order of Controlling Authority dated 25/11/2015, even if exercising the power to condone the delay in filing the appeal before the Appellate Authority, could not have been exercised.

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We do not think we can subscribe to the said contention in as much as in the writ petition, the appellant-Bank not only challenged the order of the Original Authority i.e., the Controlling Authority dated 25/11/2015, it had also challenged the endorsement dated 06/06/2016 issued by the Appellate Authority, which

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refused to entertain the appeal filed by the Bank as it was belated. Therefore, we do not think that it would be just and proper to ignore or keep aside the endorsement given in the writ petition which is at Annexure-Z and to segregate the said endorsement dated 06/06/2016 and impugned order dated 25/11/2015 and consider the same separately. That would imply bypassing of the Appellate Authority and entertaining the writ petition as against the order of Original Authority, despite availability of an alternative remedy. When the Appellate Authority could not have entertained the belated appeal, this Court in exercise of its extraordinary jurisdiction under Articles 226 and 227 of Constitution of India, could not have entertained the writ petition so as to consider the correctness or otherwise of the order of the Original Authority only by ignoring the fact that a belated appeal had been preferred and was not entertained due to the said reason.

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The matter may have been different if the appellant herein had approached this Court directly as against the order of Original Authority dated 25/11/2015 by contending that the said authority had no jurisdiction to exercise the power under the provisions of the Act, which indeed is the contention of the appellant-Bank in this case. In such an event, the wrongful exercise of the jurisdiction by the Controlling Authority may have been a reason to entertain the writ petition filed under Articles 226 and 227 of the Constitution of India. But, since the appellant-Bank opted to avail the appellate remedy and the appeal being filed beyond the prescribed period of limitation, it cannot now contend that this Court ought to have ignored the appellate remedy availed of by the Bank and consider the impugned order dated 25/11/2015 only.

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