TMI Blog2008 (2) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... pany petition before the Company Law Board. Existence of question of law is sine qua non for filing an appeal under section 10F. Thus do not feel that any such question of law has arisen in refusing the ad interim injunction. The appeal is otherwise also bereft of any merit. Thus the application under section 14 of the Limitation Act and consequently the appeal are dismissed. - C.M.A. NO. 114 OF 2007 AND C.A. NO. 21 OF 2007 IN C.P. NO. 114 OF 2006 - - - Dated:- 22-2-2008 - PERMOD KOHLI, J. Amit Rawal for the Appellant. Arun Kathpalia and Rohit Khanna for the Respondent. JUDGMENT 1. The validity of the order dated 24-11-2006, passed by the Principal Bench of the Company Law Board, New Delhi, in C.P. No. 114 of 2006 and C.A. No. 428 of 2006, has been questioned in this company appeal. At the time of filing the appeal, an application (C.M. No. 109 of 2007) was filed by the appellant under section 5 of the Limitation Act, 1963, seeking condo-nation of delay of 140 days in preferring the appeal against the impugned order before this Court. However, subsequently, another application C.M.A. No. 114 of 2007 has been filed on 21-5-2007, under section 14 of the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application in the court having jurisdiction. Learned counsel for the respondent does not object to it subject to taking all the objections available to him. The appeal and the application are dismissed as withdrawn with liberty to file it before appropriate court having jurisdiction." 5. Thereafter, the present appeal has been filed in this Court on 16-5-2007. Prayer in the present application is for exclusion of the period spent by the appellant-applicant in pursuing the proceedings before the Hon ble Delhi High Court. The proceedings before the Hon ble Delhi High Court commenced on 17-2-2007 and withdrawn on 16-4-2007. This period comes to 58 days. 6. Mr. Arun Kathpalia, advocate, appearing on behalf of respondent Nos. 1 and 2 has opposed the application on two counts :- ( i )section 14 of the Limitation Act has no application in appeal; and ( ii )the court has no jurisdiction to condone the delay beyond sixty days over and above the period of sixty days prescribed for filing the appeal under section 10F. 7. Heard counsel for the parties. 8. The period of limitation for filing the appeal against the order of the Company Law Board is prescribed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 11. The first question that needs consideration is whether the period spent in pursuing the appeal before the Hon ble Delhi High Court can be excluded in terms of section 14 of the Limitation Act. Section 14 of the Limitation Act 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 cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of an appeal is discretionary, and the Court may condone the delay in filing an appeal in the correct Court if the requirements of section 14 appear to have been satisfied and on the facts and in the circumstances of the given case they are held to constitute a sufficient cause in the sense in which that expression is used in section 5 of the Act. Even if the considerations of good faith and due diligence which are necessary ingredients of section 14, may not be applicable in their rigidity to proceedings under section 5 of the Act, lack or want of bona fides can never justify the raising of an inference or sufficient cause in any circumstances." (p. 231) 14. To the contrary, Mr. Amit Rawal, advocate, appearing on behalf of the appellant has relied upon various judgments and referred to Vijay Bros. v. Union of India [1990] 76 STC 375 (Punj. Har.) wherein it was observed as under : "For the foregoing reasons, we are of the view that section 14 of the Limitation Act is applicable to the proceedings under the Customs Act in respect of an appeal provided under section 128 and the time spent in the High Court in the abortive attempt to invoke the jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt only because of the obviously wrong end/of negligent advice of the lawyers and also inaction and negligence on the part of the Court, then it is difficult to understand as to why the appellants shall not be regarded to have made out sufficient cause for the condonation of delay resulting from such wrong institution. As already stated, our laws and forensic procedure compel a party to engage a lawyer in proceedings in courts and, therefore, the courts must see that the parties do not suffer because their lawyers have blundered." (p. 368) 17. In M.P. State Co-operative Marketing Federation Ltd. v. Union of India [2001] 3 RCR (Civil) 330, it was observed : "It would thus appear from section 14(1) of the Act that in computing the period of limitation for a suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding has to be excluded. As noticed earlier, in the instant case, the appellant has filed a petition for claim and was thus prosecuting his proceedings before the Deputy Registrar, Co-operative Societies, was not a civil suit, as has been contended by learned counsel for the respondent, but the petition filed by the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation Act subject to satisfaction of the court. Then a related question arises in this appeal whether section 5 read with section 14 of the Limitation Act can be invoked to condone the delay in view of the specific provision of section 10F read with proviso which itself provides a period of limitation different than the period provided under Schedule to the Limitation Act, 1963. The question of sufficient cause has been taken care of under the proviso to section 10F. Therefore, the period spent by the appellant in pursuing the appeal before the Hon ble Delhi High Court between 17-2-2007, to 16-4-2007, can be considered for exclusion from the total period of limitation prescribed under law, if it is found, that it constitutes sufficient cause in the facts and circumstances of the present case. Mr. Arun Kathpalia, advocate, has further argued that where initial institution of the appeal is barred by time, litigant is not entitled to the benefit of section 14 of the Limitation Act. According to him, the appeal before the Delhi High Court itself was barred by time and neither the Delhi High Court condoned the delay nor any such application for seeking condona- tion of delay has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a accepts notice on behalf of the respondent and seeks time to file the reply. Reply be filed within four weeks. List on 4-4-2007." 22. The question of jurisdiction being raised based upon the Supreme Court judgment, the appellant continued to pursue the appeal and even when the formal application was filed raising objection to the jurisdiction of the court, the appellant filed his objections and insisted that the Hon ble Delhi High Court has the jurisdiction, though ultimately the appeal was withdrawn on 16-4-2007, with liberty to approach the court of competent jurisdiction. As a matter of fact, the appellant seems to have pursued his remedy before the Hon ble Delhi High Court in a callous and negligent manner. It was not that the question of jurisdiction was raised in routine, the objection of jurisdiction of the Hon ble Delhi High Court was based upon a judgment of the Apex Court in a similar matter and the judgment in case Stridewell Leathers (P.) Ltd. ( supra ), was also noticed by the Hon ble Delhi High Court in the interlocutory order dated 19-2-2007, even then the appellant chose to continue with the appeal till 16-4-2007. This conduct of the appellant is sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation Act or the period of limitation can be extended beyond sixty days over and above initial period of sixty days as prescribed under section 10F of the Act. 24. Even though, condonation of delay under section 5 of the Limitation Act is permissible without any limit provided the applicant is able to establish sufficient cause. It is settled law that once the court is convinced or satisfied regarding the existence of a sufficient cause, the length of a period becomes irrelevant. However, this proposition is attracted only if section 5 is applicable. It has been contended on behalf of the respondents that section 5 of the Limitation Act has no application in appeal under section 10F. The contention is based upon the provision of section 29(2) of the Limitation Act read with section 10F which, inter alia, provides the period of limitation for filing the appeal and also for condonation of delay by virtue of the proviso thereto. Section 29(2) of the Limitation Act provides for application of the provision of the Limitation Act from sections 4 to 21 to a special or local law unless their application is specifically excluded by special or local law which reads as under : "Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not permit any further extension and it seems that the true import, purport and construction of the proviso is to restrict the total period of limitation to 120 days, i.e., sixty days principal and sixty days by extension subject to existence of sufficient cause in a given case. Any other interpretation would amount to committing violence to the statute itself which is impermissible under law. 27. There are similar provisions under other statutes. One such provision is sub-section (3) of section 34 of the Arbitration and Conciliation Act, 1996, which is noticed hereunder : "34(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 has 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." Scope of this provisions came up for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of section 5 of the Limitation Act to an application under section 8 of the Act. In view of what is stated above, the non-applicability of section 5 of the Limitation Act to the proceeding under section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of section 5 of the Limitation Act and the specific period of limitation prescribed under section 8 of the Act, without providing for either extension of time or application of section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability or frustrating the object of the Act. At any rate in the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav case [1974] 2 SCC 133, and subsequently followed in Anwari Basavaraj Patil case [1993] 1 SCC 636, even though special or local law does not state in so many words expressly that section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, conscious and intentional omission b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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