Mohiuddin And Others vs Appellate Authority For ...
2015 Latest Caselaw 1912 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 38
 

 

 
Case :- WRIT - C No. - 58953 of 2012
 

 
Petitioner :- Mohiuddin And Others
 
Respondent :- Appellate Authority For Industrial & Financial & Others
 
Counsel for Petitioner :- Ajay Kumar Singh, Ashish Kumar Singh
 
Counsel for Respondent :- S.D. Singh, A.K. Mishra, Kartikey Saran, Madhur Prakash, S.C.
 

 
Hon'ble Pankaj Mithal,J.

Heard Sri Ashish Kumar Singh, learned counsel for the petitioners, Sri Kartikeya Saran, learned counsel for respondent No.3 and Sri S.D.Singh, Senior Counsel assisted by Sri Nishant Mishra, learned counsel appearing for respondent No.8. Sri Madhur Prakash, learned counsel appears for all other respondents.

The challenge in this writ petition is to the order dated 27.9.2012 passed by the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), New Dew Delhi whereby the appeal of the petitioners against the order of the Board for Industrial and Financial Reconstruction (BIFR) dated 25.10.2011 has been dismissed as barred by time.

The appeal preferred by the petitioners was reported to be beyond time by more than 168 days.

The appeal to the AAIFR lies under Section 25 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the 'SICA'). It provides that the appeal to the AAIFR can be preferred within forty-five days from the date the copy of the order is issued to the person aggrieved. It further lays down that the AAIFR may entertain an appeal even after the expiry of the above period of forty-five days but not after sixty days, if it is satisfied that the person aggrieved/ appellant was prevented by sufficient cause from filing the appeal in time. In other words, the limitation for filing the appeal is only forty-five days and the AAIFR can condone the delay of another fifteen days, if it is satisfied that the appellant could not file it for sufficient reasons but it has no jurisdiction to entertain an appeal which is preferred after sixty days from the date on which the copy of the order is issued to the person aggrieved or to condone the delay thereof.

SICA is a central enactment of a special nature and is a complete code in itself. It does not provide for application of Limitation Act, 1963. Therefore, the period of limitation for filing an appeal under Section 25 of the SICA is directly governed by the provisions of the SICA itself and not by any other law unless shown to be expressly applicable.

The AAIFR by the impugned order has held that in view of the language used in Section 25 of the SICA the provisions of Section 4 to 24 of the Limitation Act are not applicable and the period which the appellants (petitioners) may have bonafidely spent in pursuing an alternative remedy before any other court is not liable to be excluded for computing the limitation of the appeal.

The petitioners allege that earlier the order of the BIFR dated 25.10.2011 was challenged by them in a writ petition filed on 29.11.2011. The said writ petition was dismissed on 11.4.2012 on the ground of alternative remedy holding that the petitioners have a statutory right of appeal before the AAIFR. Therefore, the period spent in the High Court in pursuing the aforesaid writ petition is liable to be excluded by extending the benefit of Section 14 of the Limitation Act.

Sri Ashish Singh, learned counsel for the petitioners contends that by virtue of Section 29(2) of the Limitation Act, as the SICA does not expressly excludes the applicability of Sections 4 to 24 of the Limitation Act, the petitioners are entitle to benefit of Section 14 of the Limitation Act and for exclusion of the period spend by them in pursuing the writ petition before the High Court for the purpose of computing the limitation for filing the appeal.

In support of his contention he has placed reliance upon a decision of the Supreme Court 2008 (7) SCC 169 Consolidated Engineering Enterprises Vs. Prtincipal Secretary, Irrigation Department and others which is in connection with the Arbitration and Conciliation Act, 1996 and wherein it has been held that the benefit of exclusion of time under Section 14 of the Limitation Act is available in filing application under Section 34(3) of the said Act in view of the fact that the Arbitration and Conciliation Act does not expressly exclude the application of Section 14 of the Limitation Act.

He has also placed reliance upon two other decisions on similar lines i.e. (1996) 6 SCC 101 Tapan Kumar Sadhukhan Vs. Food Corporation of India and others and (2009) 1 SCC 786 Shakti Tubes Limited Vs. State of Bihar and others.

Sri S.D.Singh, Senior Counsel opposing the argument submits that the above decisions are distinguishable. As far as the decision in relation to the Arbitration and and Conciliation Act is concerned, the said Act vide Section 43 provides for application of the Limitation Act to the proceedings under the Act whereas in the SICA there is no such provision. Secondly, the express exclusion of Sections 4 to 24 of the Limitation Act need not be in so many words and for that purpose examination of entire scheme of the statute as well as the language of the provisions of statute which provide for limitation, computation of period of limitation and for condoning the delay would be necessary. A plain reading of Section 25 of the SICA would amply demonstrate that it expressly excludes the applicability of Section 4 to 24 of the Limitation Act.

To cut short the long story, I may refer to the provisions of the SICA which would reveal that it nowhere provides for the applicability of the Limitation Act to the proceedings before the authorities under the SICA. It is a self contained code in itself and Section 25 of it is clear enough to demonstrate that the limitation for filing the appeal is forty-five days which is extendable up to sixty days if the appellate authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

The aforesaid provision not only provides for limitation for filing the appeal but also puts a limitation upon the powers of the appellate court in condoning the delay and that it cannot condone the delay of more than 15 days in filing the appeal which in other words can be expressed to mean an appeal can be entertained if it is filed within sixty days from the date on which a copy of the order is issued to the person aggrieved/appellant.

In view of the above, the provisions of the Limitation Act are not applicable to the proceedings or for the purposes of filing an appeal under Section 25 of the SICA in strict sense.

The Limitation Act is of general application and provides that the period of limitation for any suit, appeal or application and for proceedings connected therewith would be as may be prescribed by the Schedule. Section 3 of the Limitation Act is of a mandatory nature and envisages all suits, appeals moved after the period prescribed subject to Sections 4 to 24 of the said Act shall be dismissed even though limitation has not been set up as defence.

Section 29(2) of the Act provides that in the event any special or local law prescribes a different period of limitation from that prescribed by the Schedule, in applying Section 3 the period of Limitation prescribed by any special or local Act shall apply in preference to the period prescribed by the Schedule and the provisions of Section 4 to 24 shall continue to apply.

Section 29 (2) of the Limitation Act reads as under:

"29. Savings. (1)......

(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 section 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."

The aforesaid Section basically lays down two conditions for its applicability, namely, (1) where any special or local law prescribes a different limitation other than what has been prescribed in the Schedule of the Limitation Act than the limitation provided in the schedule would stand substituted by the limitation prescribed by any special or local law in its application of Section 3 of the Limitation Act; and (2) for computing the period of limitation the provisions of Sections 4 to 24 of the Limitation Act shall apply unless expressly excluded by the special or local law.

In the instant case, there is no dispute that the Schedule to the Limitation Act does not prescribe any limitation for filing an appeal before the AAIFR against any order of the BIFR. Therefore, the limitation as prescribed under Section 25 of the SICA would hold the field. Even otherwise by virtue of Section 29(2) of the Limitation Act the limitation, if any, provided in the schedule would stand altered to the one prescribed in the special law which obviously is 45 days for applying Section 3 of the Limitation Act.

As regards the second condition of exclusion of Sections 4 to 24 of the Limitation Act, it may be a debatable question but it is not necessary for me to dwell on the said aspect for the reason that even if Section 14 of the Limitation Act is held to be applicable it would not be attracted for the purpose of computing the limitation for filing appeal.

Section 14 of the Limitation Act provides for exclusion of time spent bonafidely on proceedings in a court which had no jurisdiction over the matter in computing the period of limitation of any suit or for any application. It reads as under:

"14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation.- For the purposes of this section,-

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

A bare reading of the aforesaid provision reveals that in computing the period of limitation for filing a suit or an application the time spent in any other court in good faith may be excluded. The word 'suit' used in Section 14(1) of the Limitation Act and 'application' in 14(2) of the Limitation Act are relevant and important, inasmuch as the provisions of Section 14 of the Limitation Act aforesaid is only for computing the period of limitation for filing a suit or application and not for filing any appeal or revision etc. It does not apply for computation of period of limitation for filing an appeal by excluding the time spent by a party in prosecuting an alternative remedy before a court having no jurisdiction over the matter.

The suit has been defined under Section 2(l) of the Limitation Act which specifically states that it does not include an appeal or an application. The application has been defined under Section 2(b) of the Act to mean a petition.

Admittedly, the petitioners have preferred an appeal under Section 25 of the SICA which cannot be categorised either a suit or an application as contemplated under the Limitation Act. Since the appeal preferred by the petitioners is not a suit or an application, Section 14 of the Limitation Act does not come to play at all. Therefore, even assuming that the applicability of Section 14 of the Limitation Act has not been expressly excluded under the SICA and it would apply, it cannot be used for computing the period of limitation for the purposes of filing an appeal.

In view of the aforesaid facts and circumstances, the argument of Sri Ashish Singh, learned counsel for the petitioners that they are entitle to get the delay in filing the appeal condoned by extending the benefit of Section 14 of the Limitation Act is misconceived and is not tenable in law. Section 14 of the Limitation Act even if not expressly excluded in its applicability to proceedings under the SICA, would not be attracted to compute the period of limitation for filing an appeal as its application is confined to that of suit or an application.

The principle on which the analogy behind Section 14 of the Act has been held to be applicable vide 2015 (319) E.L.T. 373 (SC) M.P. Steel Corporation Vs. Commissioner of Central Excise would also not be of any help to the petitioner as where the provision itself is not applicable the benefit thereof cannot be extended by applying the analogy of the said provision. A statutory provision which is not applicable can not be applied by adopting the principle or analogy behind the said statutory provision.

Lastly, Sri Ashish Singh has submitted that under the peculiar facts and circumstances of the case even if the benefit of Section 14 of the Act is not available to the petitioner this Court in exercise of its inherent jurisdiction can condone the delay and direct for decision of the appeal on merits.

The inherent power can be exercised only in the absence of a statutory remedy. The petitioners had the remedy of appeal but they failed to avail it within time. The statute prohibits condoning the delay of beyond 60 days in filing of the appeal Therefore, what is statutorily barred can not be done by invoking the inherent powers on equitable principles. There is no law which places equity before the Law. Equity has always followed the law and not vice versa. Therefore, a thing which is expressly not permissible in law can not be done by exercising equitable power.

Accordingly, the writ petition is dismissed as devoid of merits with no order as to costs.

Order Date :- 20.8.2015

Brijesh