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2015 (1) TMI 22 - BOMBAY HIGH COURTCondonation of delay - Petitioner submitted that the said application be considered sympathetically and reasonably, because the delay in filing the same has been occasioned on account of the Petitioner being advised to file a Writ Petition under Article 226 of the Constitution of India in this Court to challenge the order in original dated 27th June, 2011 - it is only when this Court passed the order that the Writ Petition cannot be entertained, as there is an alternate equally efficacious remedy of a statutory Appeal that the Petitioner became aware of the legal provision and the time limit within which the said Appeal has to be filed. Held that:- the Hon’ble Supreme Court held in the case of Mohinder Singh (1996 (8) TMI 513 - SUPREME COURT) that once limitation starts running, till its running is stopped by an order of the competent Civil Court or competent Authority, it cannot stop. It overruled the earlier Judgment in the case of P. K. Kutty Anuja Raja and Anr. vs. State of Kerala and Anr. reported in [1996 (2) TMI 532 - SUPREME COURT] only because no argument was advanced as regards the applicability of doctrine of merger. The Hon’ble Supreme Court entertained the SLP and granted leave to Appeal as also stay. The time spent in prosecuting the proceedings before the Hon’ble Supreme Court and which is bonafide was permitted to be excluded. Pertinently, the test laid down is applicable in a case where a Appeal is filed that being a continuation of the lis, its pendency can be relied upon to claim the benefit. A Writ Petition's pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neither it was entertained nor any interim relief was granted, leave alone admitting it. If the Petitioner decides not to approach the appropriate, correct or right Forum, but tries to bypass it by filing a Writ Petition and allows the time to run, then, it cannot request this Court in its discretionary and equitable jurisdiction to set right a wrong, for which it is itself responsible. In other words, the Petitioner is trying to take advantage of its own wrong committed earlier in approaching this Court, though knowing fully well that it had refused to exercise jurisdiction, because the alternate efficacious remedy of Appeal to the Commissioner of Customs was provided by law. The Petitioner did not take steps to file such an Appeal even during the pendency of the Writ Petition and allowed the time to run. In these circumstances, we cannot extend any benefit, as that would allow the Petitioner to take advantage of its own wrong. As a result of the above discussion, the Writ Petition fails. Rule is discharged. - Decided against assesse.
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