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TMI Blog2011 (7) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Appellant thereupon instituted proceedings under Article 226 of the Constitution before the Delhi High Court. The Delhi High Court dismissed the Petition by a judgment dated 24 September 2008 holding that it had no territorial jurisdiction and that by virtue of the provisions of Section 35, it was not entertaining the Petition. In appeal, the Supreme Court by its judgment dated 12 April 2010 [2010 (253) E.L.T. 3 (S.C.)] held that an appeal under Section 35 can be preferred against any order or decision of the Appellate Tribunal which should mean all decisions or orders of the Tribunal. The Supreme Court rejected the contention that an Appeal under Section 35 can be filed only from a final order or judgment of the Tribunal and not from an interlocutory order. While dismissing the Appeal preferred by the Appellant, the Supreme Court observed thus : "In view of this Court's jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to Section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sixty days. Parliament has unequivocally spelt out its intent that while the period of limitation for filing an Appeal before the High Court is sixty days from the date of the communication of the decision or order of the Tribunal, the High Court is vested with the jurisdiction to condone a delay of a period not exceeding sixty days for sufficient cause. Since the FEMA constitutes special legislation on the subject, the limitation prescribed for filing an Appeal before the High Court and the provision made in Section 35 on the extent of the power of the High Court to condone delay would prevail. In view of the proviso to Section 35, the High Court has no jurisdiction to condone the delay in filing an Appeal beyond what is stipulated in the proviso. The issue, however, that falls for determination in these proceedings is whether the provisions of Section 14 of the Limitation Act, 1963 would apply in relation to an Appeal before the High Court under Section 35 of the FEMA. 7. Section 29(2) of the Limitation Act, 1963 prescribes that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the time prescribed by the Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Section 14 of the Limitation Act, 1963. 8. In arriving at this conclusion, we are fortified by the judgment of a Bench of three Judges of the Supreme Court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department [2008 (7) SCC 169]. Section 34 of the Arbitration and Conciliation Act, 1996 specifies that an application for 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 that arbitral award. Under the proviso, 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. The issue which arose before the Supreme Court was whether the Limitation Act, 1963 was inapplicable to a proceeding in Court under the Arbitration and Conciliation Act and, even if the Limitation Act, 1963 is applicable, whether the applicability of Section 14 is excluded to proceedings under Section 34(1) of the Arbitration and Conciliation Act, 1996. At this stage, it would be necessary to note th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the Court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect or procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded." In his concurring judgment, Mr. Justice R.V. Raveendran held that the proviso to Section 34(3) is a provision relating to the extension of the period of limitation; and since it differs from Section 5 of the Limitation Act in regard to the period of extension, the proviso to Section 34(3) would have the effect of excluding section 5 of the Limitation Act. However, Section 14 of the Limitation Act does not relate to the extension of the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a Court." 12. In the present case, the Supreme Court has in its judgment dated 12 April 2010 held that the Appellant was bona fide pursuing his case under Article 226 of the Constitution first before the Delhi High Court and thereupon in appeal before the Supreme Court. The Tribunal rejected the application filed by the Appellant for dispensing with the condition of pre-deposit by its judgment dated 17 April 2008. In para 5 of the Civil Application, it has been stated that the Appellant received a copy of the order of the Tribunal on 4 August 2008. Counsel for the applicant states that the Appellant filed a Petition before the Delhi High Court under Article 226 of the Constitution on 3 September 2008. The Petition was dismissed on 24 September, 2008. The Appellant is stated to have filed a Special Leave Petition before the Supreme Court on 27 November 2008 which was dismissed by a judgment dated 12 April 2010. 13. After excluding the period between 3 September 2008 (the date of the filing of the Petition in the Delhi High Court) and 24 Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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