Development Credit Bank Limited vs Appellate Tribunal For Forfeited ...
2015 Latest Caselaw 662 Bom

                                                                             WP2597.13.docx




                                                                              
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    ORDINARY ORIGINAL CIVIL JURISDICTION




                                                      
                            WRIT PETITION NO.2597 OF 2013




                                                     
    Development Credit Bank Ltd.                        ... Petitioners
         v/s
    Appellate Tribunal for Forfeited Property,
    New Delhi and others                                ... Respondents

Mr Ashish Kamat with Mr Kunal Mehta, Mr Nikhil Rajani, Mr

Nilesh Bamne i/b M/s V. Deshpande and Co. for Petitioners.

Mr Pradeep S. Jetly with Mr Anjani Kumar for Respondent Nos.1, 2

and 4.

CORAM: S.C. DHARMADHIKARI &

B.P. COLABAWALLA JJ.

Reserved On : 7th December, 2015.

Pronounced On : 21st December, 2015.

Judgment [ Per B. P. Colabawalla J. ] :-

1. Rule. Respondents waive service. By consent of the

parties, rule made returnable forthwith and heard finally.

2. By this Petition under Article 226 of the Constitution of

India, the Petitioners seek to challenge the order dated 12th March

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2013 passed by the Appellate Tribunal for Forfeited Property, New

Delhi, Respondent No.1 herein. Challenge is also laid to the order

dated 23rd September, 2011 passed by the passed by Respondent

No.2 under section 7 of the Smugglers and Foreign Exchange

Manipulators (Forfeiture of Property) Act, 1976 (for short

"SAFEMA"). Respondent No.2 is the Competent Authority under

SAFEMA.

3.

The brief facts to decide the present controversy is that

Respondent No.3 is a sole proprietor of M/s. Aakar Prints and Packs

and was the owner of a flat bearing No.G-2, Sushobhit CHS,

Charkop, M.G. Road, Sector-2, Kandivli (W), Mumbai-67 (for short,

the "suit property") alongwith a Mitsubishi Lancer car bearing

registration No.GJ-18-AB-1171. The Petitioner claims to be the

mortgagee of the suit property in the facts and circumstances

narrated hereafter.

4. On 23rd August 2006, an order of detention was passed

against Respondent No.3 under section 3(1) of the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(for short, "COFEPOSA"). In view of the said detention, the

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provisions of SAFEMA were made applicable to Respondent No.3 as

he was a notified person under the provisions of section 2(2)(b) of

SAFEMA. Ms. Pravina L. Patel, 3rd Respondent's wife was also

covered under the definition of "relative" as defined under section

2(2)(c) of SAFEMA. Thereafter, an enquiry in relation to

Respondent No.3's properties were initiated by the authorities in

October/November 2006. Summons were also issued to Respondent

No.3 and his wife in January 2008 and Respondent No.3's

statement was also recorded in March 2008. Thereafter, further

enquiries were conducted which finally culminated in a show cause

notice dated 1st September, 2010 being issued to Respondent No.3

and his wife under section 6 of SAFEMA for various properties

including the suit property and calling upon them to explain the

sources of income through which they were acquired.

5. The above show cause notice was thereafter adjudicated

and Respondent No.2, by an order of forfeiture dated 23rd

September, 2011, passed under section 7 of SAFEMA held that the

suit property was an illegally acquired property and stood forfeited

to the Central Government free from all encumbrances. The

aforesaid finding was rendered by Respondent No.2 on the basis

that Respondent No.3 and his wife failed to produce sufficient

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evidence to prove that the suit property was acquired from legal

sources. Pursuant to this order, Respondent No.2 put his lock on

the suit property.

6. Being aggrieved by the aforesaid order, Respondent

No.3 and his wife thereafter, filed an appeal before Respondent

No.1. This appeal was also dismissed on 11th March, 2013.

7.

In the meanwhile, on 5th January 2010, the Petitioners,

at the request of Respondent No.3, sanctioned to him a cash credit

facility to the tune of Rs.35,00,000/-. The Petitioners contend that

the repayment of the aforesaid cash credit facility was inter alia

secured by creation of an equitable mortgage of the suit property. It

is stated that this mortgage was created on 29th January, 2010. In

view of defaults being committed by Respondent No.3 in repayment,

his account was classified as a non-performing asset with effect

from 15th December, 2010 and the Petitioners initiated action

under the provisions of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002

(for short, the "SARFAESI Act"). Accordingly, the Petitioners

issued a notice dated 1st January, 2011 under section 13(2) of the

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SARFAESI Act calling upon Respondent No.3 to pay the total

outstanding amount of Rs.35,79,092/- and interest within 60 days

of receipt thereof, failing which measures under section 13(4) of

the SARFAESI Act would be initiated.

8. As Respondent No.3 committed default in complying

with the requisitions contained in the aforesaid notice, the

Petitioners filed an application under section 14 of the SARFAESI

Act before the Chief Metropolitan Magistrate seeking his assistance

for taking physical possession of the suit property and handing over

the same to the Petitioners. By an order dated 4th November 2011,

the said Application was granted and pursuant thereto, it is the

claim of the Petitioners that they have, on or about 23rd January

2013, taken physical possession of the suit property.

9. Before taking physical possession of the suit property

on 23rd January 2013, in furtherance of the measures taken under

the provisions of the SARFAESI Act, the Petitioners by a Public

Notice dated 10th February, 2012 sought to auction the suit

property for recovery of its dues.

10. In view of the aforesaid Public Notice coming to the

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attention of the authorities under SAFEMA, the Joint

Commissioner, by his letter dated 20th February 2012 called upon

the Petitioners not to take further steps in respect of the suit

property, as according to him, under section 14 of SAFEMA, there

was an express bar in proceeding with the sale of the suit property

once it had been declared as a forfeited property under section 7 of

the said Act. A copy of the order passed under section 7 of SAFEMA

and dated 23rd September, 2011 was also enclosed with the said

letter.

11. In reply to the said letter, the Petitioners through their

Advocates' letter dated 22nd March, 2012 called upon Respondent

No.2 to refrain from taking any action in furtherance of their order

dated 23rd September, 2011 owing to the fact that credit facilities

were extended to Respondent No.3 who had subsequently defaulted

and the consequent measures taken by the Petitioners under the

provisions of the SARFAESI Act with respect to the suit property.

12. Thereafter, the Petitioners sent a communication dated

2nd May, 2012 demanding from Respondent No.2 certified copies of

certain documents which were duly supplied to the Petitioners on

29th May, 2012. The Petitioners have then filed an appeal under

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section 12(4) of SAFEMA on 6th June 2012 challenging the order

dated 23rd September, 2011. Along with their appeal the Petitioners

also filed an application for condonation of delay, if any, in filing the

appeal.

13. This appeal along with the application for condonation

of delay was heard by Respondent No.1 and on 12th March 2013,

Respondent No.1 passed the impugned order dismissing the appeal

of the Petitioners on the ground that it was not filed within the time

prescribed under section 12(4) of SAFEMA. Being aggrieved by

this order, the Petitioners are before us in our extraordinary,

equitable and discretionary jurisdiction under Article 226 of the

Constitution of India questioning the legality and validity of the

order dated 12th March, 2013 passed by Respondent No.1.

14. In this factual backdrop, Mr. Kamat, learned counsel

appearing on behalf of the Petitioners, principally, raised two

contentions. The first contention canvassed was that the

provisions of the SARFESI Act would override the provisions of

SAFEMA insofar as the provisions contained therein are

inconsistent with the provisions of the SARFAESI Act. In other

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words, it was the submission of Mr. Kamat that the provisions of

SARFAESI Act would have primacy over the provisions of SAFEMA.

The second contention canvassed before us was that in any event

Respondent No.2 was in grave error in not condoning the delay, if

any, in filing the appeal under section 12(4) of SAFEMA and

thereby there was a clear miscarriage of justice which required our

interference under Article 226 of the Constitution of India.

15.

Though, the first contention was initially argued quite

extensively, on instructions, Mr.Kamat stated that he is not

pressing this contention and we should not render any finding on

this aspect. In view of this statement we are now only called upon

to decide whether Respondent No.1 was justified in rejecting the

appeal of the Petitioners on the ground that it was barred by

limitation or whether Respondent No.1 ought to have condoned the

delay, if any, and heard the Petitioners' appeal on merits.

16. On this aspect, Mr. Kamat submitted that Respondent

No.1 was in grave error in dismissing the Petitioners' appeal on the

ground that it was not filed within the time period prescribed under

section 12(4) of SAFEMA. Mr. Kamat submitted that looking to the

facts and circumstances of the present case, there was no delay in

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filing the present appeal. Mr. Kamat submitted that even though a

copy of the order dated 23rd September, 2011 (and which was

impugned in the appeal) was served upon the Petitioner on 20th

February, 2012, the papers and proceedings which culminated in

the said order, were admittedly served upon the Petitioner only on

29th May, 2012. The appeal before Respondent No.1 was thereafter

filed on 6th June, 2012. He, therefore, submitted that looking to

these dates, the appeal was filed within the time prescribed under

section 12(4) of SAFEMA and there was no delay in filing the

appeal. In this regard, Mr. Kamat relied upon the provisions of

section 12(4) and contended that the said section stipulates that

when any person is aggrieved by the order of the Competent

Authority made under section 7, sub-section (1) of section 9 or

section 10, shall file an appeal to the Appellate Tribunal within 45

days from the date on which the order is served on him. He

submitted that in view of the fact that the Petitioners were not

parties to the proceedings that were initiated by the Competent

Authority against Respondent No.3 which culminated in the order

of forfeiture passed under section 7 of SAFEMA, the words "from

the date on which the order is served on him" appearing in section

12(4) ought to be construed so as to include service not only of a

copy of the order but also the papers and proceedings that

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culminated in the said order being impugned. This submission was

based on the fact that the Petitioners being a third party could not

effectively challenge the order in appeal without having in their

possession or custody the papers and proceedings which led to the

passing of the order being challenged. It would therefore be

necessary for the Petitioners to also be served with the papers and

proceedings to effectively challenge the order in appeal. In these

circumstances, Mr. Kamat submitted that there was no delay in

filing the appeal and Respondent No.1 was in grave error in

dismissing the same on the ground that it was barred by limitation.

17. Alternatively, Mr. Kamat submitted that in any event,

Respondent No.1 should have condoned the delay, if any. It was Mr

Kamat's submission that it was not as if there was any gross delay

and/or laches on the part of the Petitioners that had caused any

prejudice to any party and a sufficient explanation for the delay

had been stated in the application for condonation of delay. In

these circumstances, Mr. Kamat submitted that even on this

ground, the impugned order was contrary to law that required our

interference under Article 226 of the Constitution of India.

18. With the help of the learned counsel, we have gone

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through the papers and proceedings in the above Writ Petition

along with the Annexures thereto. We have also carefully perused

the orders impugned in this Writ Petition. To understand the

controversy, it would be apposite to refer to the provisions of

section 12 of SAFEMA which read as under:-

"12. Constitution of Appellate Tribunal.--(1) The Central Government may, by notification in the Official Gazette, constitute an Appellate Tribunal to be called the Appellate Tribunal for

Forfeited Property consisting of a Chairman and such number of other members (being officers of the Central Government not below the rank of a Joint Secretary to the Government) as the

Central Government thinks fit, to be appointed by the Government for hearing appeals against the orders made under Section 7, sub- section (1) of Section 9 or Section 10.

(2) The Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of the Supreme Court or of a High Court.

(3) The terms and conditions of service of the Chairman and other members shall be such as may be prescribed.

(4) Any person aggrieved by an order of the competent authority made under Section 7, sub-section (1) of Section 9 or Section 10, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal:

Provided that the Appellate Tribunal may entertain any appeal after the said period of forty-five days, but not after sixty days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(5) On receipt of an appeal under sub-section (4), the Appellate Tribunal may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further enquiry as it deems fit, confirm, modify or set aside the order appealed against. (6) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches consisting of three members and constituted by the Chairman of the Appellate Tribunal.

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(6-A) Notwithstanding anything contained in sub-section (6), where the Chairman considers it necessary so to do for the

expeditious disposal of appeals under this section, he may constitute a Bench of two members and a Bench so constituted may exercise and discharge the powers and functions of the Appellate

Tribunal:

Provided that if the members of a Bench so constituted differ on any point or points, they shall state the point or points on

which they differ and refer the same to a third member (to be specified by the Chairman) for hearing on such point or points and such point or points shall be decided according to the opinion of that member.

(7) The Appellate Tribunal may regulate its own procedure. (8) On application to the Appellate Tribunal and on payment of the

prescribed fee, the Tribunal may allow a party to any appeal or any person authorised in this behalf by such party to inspect at any time during office hours, any relevant records and registers of the

Tribunal and obtain a certified copy of any part thereof."

(emphasis supplied)

19. As section 12(1) itself suggests, the Appellate Tribunal

is constituted by the Central Government for hearing appeals

against the orders made under section 7, sub-section (1) of section

9 or section 10 of SAFEMA. Section 12(4) stipulates that any

person aggrieved by the order of the Competent Authority made

under section 7, sub-section (1) of section 9 or section 10, may,

within 45 days from the date on which the order is served on him,

prefer an appeal to the Appellate Tribunal. The proviso to section

12(4) stipulates that the Appellate Tribunal may entertain any

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appeal after the said period of 45 days but not after 60 days from

the date aforesaid provided it is satisfied that the Appellant was

prevented by sufficient cause from filing the appeal in time. In

other words, the period for filing the appeal under section 12(4) is a

period of 45 days and if the appeal is not filed within the aforesaid

time period, it has the discretion to condone the delay for an

additional period of 15 days. The words "but not after 60 days"

appearing in the proviso to section 12(4) are of great significance

as it clearly mandates that the Appellate Tribunal would have no

power to condone the delay beyond the period specified in the

proviso to section 12(4). We will deal with this aspect a little later

in this judgment. Before we proceed further, we must mention here

that we have not dealt with the other sub-sections of section 12 as

they are not really germane to the controversy raised before us.

20. Looking to the provisions of section 12(4), it is clear

that time to file the appeal starts to run from the date on which the

order is served upon a person who is aggrieved by the said order.

As the section itself suggests any person aggrieved by the order of

the Competent Authority, made under section 7, sub-section (1) of

section 9 or section 10, may within 45 days from the date on which

the order is served on him, prefer an appeal to the Appellate

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Tribunal. In the facts of the present case, admittedly, the order

dated 23rd September, 2011 (and which was impugned in the

Petitioners' appeal) was served upon the Petitioners on 20th

February, 2012. We are, therefore, clearly of the view that the time

to file the appeal started to run from the aforesaid date (i.e. 20th

February, 2012). We are unable to accept the submission of Mr.

Kamat that when an appeal is filed by a third party, then, not only

a copy of the order but also the papers and proceedings should be

served on the party, failing which the time does not start to run. To

our mind, that would clearly violate the plain language of the

statute and by the process of judicial interpretation we cannot

supply words therein, which are otherwise clear and unambiguous,

and alter the mandate of the legislature. It is pertinent to note that

there was no bar or fetter on the Petitioners from filing their appeal

once they received a copy of the order on 20th February, 2012.

Instead of filing their appeal, the Petitioners engaged in

correspondence with the authorities. We do not think that entering

into such correspondence would stall the time to run against the

Petitioners to file their appeal. We, therefore, have no hesitation in

rejecting the contention of Mr. Kamat that there was no delay in

filing the appeal.

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21. Having held so, we shall now examine the alternate

argument of Mr. Kamat that in any event, Respondent No.1 should

have condoned the delay and heard the appeal of the Petitioners on

merits. In the facts of the present case, as stated earlier, a copy of

the order dated 23rd September, 2011 was served on the Petitioners

on 20th February, 2012. The appeal admittedly was filed on 6th

June, 2012. Therefore clearly the appeal was filed after a period of

106 days from the date on which the order was served upon the

Petitioners.

22. On an ex-facie reading of section 12(4), it is clear that

the appeal is to be filed within a period of 45 days from the date on

which the order is served on the aggrieved person. If the appeal is

not filed within the aforesaid period, under the proviso to section

12(4), the Appellate Tribunal is given the power to condone the

delay for an additional period of 15 days, but not thereafter. This

is ex-facie apparent from the clear language of the proviso to

section 12(4) which categorically stipulates that the Appellate

Tribunal may entertain an appeal after the said period of 45 days

but not after 60 days from the date aforesaid, if it is satisfied that

the Appellant was prevented by sufficient cause from filing the

appeal in time. The words "but not after 60 days" are of great

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significance. These words indicate that there is a clear mandate

that beyond the period of 60 days from the date on which the order

is served upon the aggrieved person, the Appellate Tribunal has no

power to condone the delay.

23. It cannot be seriously disputed that SAFEMA is a special

law and that section 12(4) provides for a period of limitation

different from that prescribed under the Limitation Act, 1963.

Section 29(2) of the Limitation Act, inter alia stipulates that 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 to the Limitation Act, provisions of

section 3 thereof shall apply as if such period were the period

prescribed by the Schedule and for the purpose of determining any

period of limitation prescribed by any such special or local law, the

provisions contained in sections 4 to 24 of the Limitation Act shall

apply only insofar as and to the extent to which, they are not

expressly excluded by such special or local legislation. Section 29

of the Limitation Act, 1963 reads thus:-

29. Savings.--(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period

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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 insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

(3) Save as otherwise provided in any law for the time being in

force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the

Indian Easements Act, 1882, may for the time being extend.

ig (emphasis supplied)

24. On perusing section 29(2) of the Limitation Act, it is ex-

facie clear that the provisions of sections 4 to 24 would apply when

(i) there is a special or local law which prescribes a different period

of limitation for any suit, appeal or application; and (ii) the special

or local law does not expressly exclude those sections. In other

words, if the special or local law expressly excludes the provisions

of sections 4 to 24 of the Limitation Act, then, recourse cannot not

be had to any of those sections as they have been expressly

excluded.

25. As stated earlier, there is no dispute that SAFEMA is a

special law and that section 12(4) provides for a period of

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limitation different from that prescribed under the Limitation Act.

Looking to the clear language of section 12(4) and specifically to

the words "but not after 60 days" appearing in the proviso thereto,

we are clearly of the view there was an express exclusion within

the meaning of section 29(2) of the Limitation Act to the

applicability of section 5 thereof. To our mind, Parliament did not

need to go any further. To hold that the Appellate Tribunal could

entertain the appeal under section 12(4) even beyond the extended

period as stipulated in ig the proviso thereof, would render the

phrase "but not after 60 days", wholly otiose. No principle of

interpretation would justify such a result. We are, therefore,

clearly of the view that under the provisions of section 12(4) read

with the proviso thereto, the Appellate Tribunal had no power to

condone the delay beyond the period of 60 days from the date on

which the order impugned in the appeal was served on the

aggrieved party. In the facts of the present case, admittedly, the

appeal of the Petitioners was filed beyond the period of 60 days

from the date on which the order was served upon them. We,

therefore, find no infirmity in the impugned order dated 12th

March, 2013 passed by Respondent No.1.

26. In taking this view, we are supported by a decision of

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the Supreme Court in the case of Union of India v/s Popular

Construction Company.1 The issue involved before the Supreme

Court in the aforesaid decision was whether the Court entertaining

a challenge to an Arbitral Award under section 34 of the

Arbitration and Conciliation Act, 1996 had the power to condone

the delay beyond the period specified in the said section. Whilst

analyzing the law on the subject, the Supreme Court held as under:-

"4. Before us, the appellant has not disputed the position that if the

Limitation Act, 1963 and in particular Section 5, did not apply to Section 34 of the 1996 Act, then its objection to the award was time-barred and the appeal would have to be dismissed. The submission, however, is that Section 29(2) of the Limitation Act

makes the provisions of Section 5 of the Limitation Act applicable to special laws like the 1996 Act since the 1996 Act itself did not expressly exclude its applicability and that there was sufficient cause for the delay in filing the application under Section 34.

Counsel for the respondent, on the other hand, has submitted that the language of Section 34 plainly read, expressly excluded the

operation of Section 5 of the Limitation Act and that there was as such no scope for assessing the sufficiency of the cause for the delay beyond the period prescribed in the proviso to Section 34.

5. The issue will have to be resolved with reference to the language

used in Section 29(2) of the Limitation Act, 1963 and Section 34 of the 1996 Act. Section 29(2) provides that:

"29. (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 insofar as, and to the extent to which, they are

1 (2001) 8 SCC 470

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not expressly excluded by such special or local law."

6. On an analysis of the section, it is clear that the provisions of

Sections 4 to 24 will apply when:

(i) there is a special or local law which prescribes a

different period of limitation for any suit, appeal or application; and

(ii) the special or local law does not expressly exclude those sections.

7. There is no dispute that the 1996 Act is a "special law" and that Section 34 provides for a period of limitation different from that prescribed under the Limitation Act. The question then is -- is such exclusion expressed in Section 34 of the 1996 Act? The relevant

extract of Section 34 reads:

"34. Application for setting aside arbitral award.--(1)- (2)***

(3) An application for setting aside 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:

Provided 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 within a further period of thirty days, but not thereafter."

8. Had the proviso to Section 34 merely provided for a period

within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because "mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5" [Mangu Ram v. Municipal Corpn. of Delhi, (1976) 1 SCC 392 at p. 397, para 7 : 1976 SCC (Cri) 10] .

*********

11. Thus, where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the specific inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary

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implication stood excluded [Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai, (1992) 4 SCC 264] .

12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the

proviso to sub-section (3). In our opinion, this 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 that Act. Parliament did not need to go

further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result."

27. The principle of law laid down in the aforesaid decision

of the Supreme Court clearly supports the view that we have taken

in this judgment.

28. We may also refer to a decision of a Division Bench of

this Court to which one of us was a party (S. C. Dharmadhikari, J.),

in the case of Flemingo (Duty Free Shop) P. Ltd V/s

Commissioner of Customs (Appeals), Mumbai-I.2 Paragraph 27

of this judgment reads thus:-

"27. We have referred to a Judgment of the Hon'ble Supreme Court recently delivered by a three Judge Bench in the order

passed by us in the case of M/s. Jonson and Jonson (supra). That decision of the Hon'ble Supreme Court makes detailed reference to several decisions rendered either by two Judge or three Judge Bench of the Hon'ble Supreme Court. The Hon'ble Supreme Court proceeds to hold that when applicability of section 5 of the Limitation Act is not absolute, but circumscribed or restricted,

2 2015 (315) E.L.T. 321 (Bom.)

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then, the statutory provision restricting or circumscribing it must be given effect to in the light of clear language of sub-section (2) of

section 29 of the Limitation Act, 1963. In other words, sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which they are not excluded by the special or local law. In our case,

beyond further period of 30 days and total period of 90 days, there is no further application of section 5 of the Limitation Act, 1963. The extent to which section 5 can be applied having been enumerated and set out in section 128(1) of the Customs Act, 1963,

which is a special law, then, for the further delay in filing or presenting the Appeal, applicability of section 5 of the Limitation Act, 1963 is expressly ruled out. The language of section 128(1), which is a special law, therefore cannot be ignored or brushed

aside."

29.

In view of the authoritative pronouncements of the

Supreme Court as well as a Division Bench of this Court, we are

clearly of the view that Respondent No.1 had no power to condone

the delay beyond the period of 60 days from the date on which the

order was served upon the Petitioners. As stated earlier, it is

admitted that the appeal of the Petitioners was not filed within the

aforesaid period, and therefore, clearly time barred. In this view of

the matter, no fault can be found with the impugned order requiring

interference in our extraordinary, equitable and discretionary

jurisdiction under Article 226 of the Constitution of India.

30. Before concluding this judgment, we must clarify that

any observations made herein are without prejudice to the rights

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and contentions that the Petitioners may have against Respondent

No.3 and nothing in this judgment should be construed to mean that

we have foreclosed any such rights or contentions of the

Petitioners. With this clarification, Rule is discharged and the Writ

Petition is dismissed. However, in the facts and circumstances of

the case, we leave parties to bear their own costs.

                                        
     (B.P. COLABAWALLA J.)
                                    ig   (S.C. DHARMADHIKARI J.)
                                  
      
   






    VRD                                                                       23 of 23