TMI Blog2015 (4) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... e number of authorities which have held that Section 14 should be liberally construed to advance the cause of justice - see: Shakti Tubes Ltd. v. State of Bihar, [2008 (12) TMI 721 - SUPREME COURT OF INDIA] and the judgments cited therein. Obviously, the context of Section 14 would require that the term “court” be liberally construed to include within it quasi-judicial Tribunals as well. This is for the very good reason that the principle of Section 14 is that whenever a person bonafide prosecutes with due diligence another proceeding which proves to be abortive because it is without jurisdiction, or otherwise no decision could be rendered on merits, the time taken in such proceeding ought to be excluded as otherwise the person who has approached the Court in such proceeding would be penalized for no fault of his own. Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal such as the Collector (Appeals) mentioned in Section 128 of the Customs Act. However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001. - Matter remanded back - Decided in favour of assessee. - CIVIL APPEAL NO.4367 OF 2004 - - - Dated:- 23-4-2015 - A.K. Sikri And R.F. Nariman JJ. For the Appellant : Mr. S. R. Setia,Adv. For the Respondent : Ms. Sunita Rani Singh,Adv. Mr. B. Krishna Prasad,Adv.Judgment R.F. Nariman, J. 1. The facts giving rise to the present appeal are as follows. The appellant is engaged in ship breaki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector by his letter dated 25.3.1992. Pursuant thereto the Superintendent of Customs and Central Excise passed an order dated 2nd April, 1992 in respect of vessel M.V. Olinda . Of course the order dated 2nd April, 1992 is based on the decision of the Collector. However, the order remains that of the Superintendent of Customs and Central Excise. The respondent filed an appeal directly before CEGAT. CEGAT has disposed of this appeal by the impugned order. CEGAT negatived a contention that the appeal was not maintainable before them on the basis that the Superintendent s order is nothing more than a communication of the order passed by the Collector (Appeals). CEGAT held that the appeal was in fact against the Collector s order. In our view, the reasoning of CEGAT cannot be sustained. The decision taken by the Collector was not taken in his capacity as Collector (Appeals). Also the order by which respondent is aggrieved is the order passed by the Superintendent. An appeal against that order has to be filed before the Commissioner (Appeals) under Section 128. By virtue of Section 129-A, CEGAT has no jurisdiction to entertain such an appeal. It is clear that the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the abortive appeal filed before CEGAT should be excluded, which would include the period even prior to 22.6.1992 when the abortive appeal was filed. As an alternative submission, on the assumption that Section 14 applied only to Courts and not to Tribunals, he submitted that the principle of Section 14 would then apply. According to him, Section 128 of the Customs Act before its amendment in 2001 would be attracted on the facts of this case giving him a period of 90 days plus an extended period of a further period of 90 days within which the present appeal could be filed. This being the case, on an application of Section 14, the appeal would be filed with no delay at all even if the period from 3.4.1992 to 22.6.1992 and 12.3.2003 to 23.5.2003 is to be taken into account, as that would be less than 180 days given to file the appeal under the old Section 128. He cited a number of authorities which we will deal with in the course of this judgment in support of all the aforesaid propositions. 5. Shri A.K. Sanghi, learned senior advocate appearing on behalf of the Department argued that Section 128 of the Customs Act excluded the application of Section 14 of the Limitation Act in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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. 6. Shri A.K. Sanghi, learned senior counsel appearing on behalf of the Department has stated that at no point of time has the appellant taken up a plea based on Section 14. Neither has the appellant met with any of the five conditions set out in paragraph 21 of Consolidated Engg. Enterprises v. Principal secy., Irrigation Deptt., (2008) 7 SCC 169, which reads as follows:- 21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside CEGAT s order on the ground that it was without jurisdiction. It is indisputable that the earlier proceeding and the later proceeding relate to the same matter in issue and thus condition 4 is also met. Condition 5, however, has not been met as both the proceedings are before a quasi-judicial Tribunal and not in a Court. This, however, is not fatal to the present proceeding as what is being held by us in this judgment is that despite the fact that Section 14 of the Limitation Act may not apply, yet the principles of Section 14 will get attracted to the facts of the present case. It is in this way that we now proceed to consider the law on the subject. Whether the Limitation Act applies only to Courts and not to Tribunals 8. A perusal of the Limitation Act, 1963 would show that the bar of limitation contained in the Schedule to the Act applies to suits, appeals, and applications. Suit is defined in Section 2(l) as not including an appeal or an application. The word Court is not defined under the Act. However, it appears in a number of its provisions (See: Sections 4,5,13,17(2),21). A perusal of the Schedule would show that it is divided into three divisions. The firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision, all applications that are referred to are under Articles 118 to 137 only to Courts , either under the Civil Procedure Code or under other enactments. 14. Sections 13, 21 and Articles 124, 130 and 131 of the Limitation Act are again important in understanding what is meant by the expression Court . They are set out below: 13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.-In computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded, and the court may, on payment of the court fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court fees had been paid in the first instance. 21. Effect of substituting or adding new plaintiff or defendant.-(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is regard, Section 26 of the CPC states: Section 26- Institution of suits (1)Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. (2) In every plaint, facts shall be proved by affidavit. 16. When it comes to applications, again Articles 124, 130 and 131 throw a great deal of light. Only review of judgments by a court is contemplated in the Third Division in the Schedule. Further, leave to appeal as a pauper again can be made either to the High Court or only to any other court vide Article 130. And by Article 131, a revision petition filed only before Courts under the Code of Civil Procedure Code or the Code of Criminal Procedure are referred to. On a plain reading of the provisions of the Limitation Act, it becomes clear that suits, appeals and applications are only to be considered (from the limitation point of view) if they are filed in courts and not in quasi-judicial bodies. 17. Now to the case law. A number of decisions have established that the Limitation Act applies only to courts and not to Tribunals. The distinction between courts and quasi-judicial decisions is succinctly brought out in Bharat Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication made under the Industrial Disputes Act to a Labour Court was covered by the said Article. This Court negatived the said plea in the following terms:- 12. This point, in our opinion, may be looked at from another angle also. When this Court earlier held that all the articles in the third division to the schedule, including Article 181 of the Limitation Act of 1908, governed applications under the Code of Civil Procedure only, it clearly implied that the applications must be presented to a court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included within the third division by amendment of Articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil Procedure. As best, the further amendment now made enlarges the scope of the third division of the schedule so as also to include some applications presented to courts governed by the Code of Criminal Procedure. One factor at least remains constant and that is that the applications must be to courts to be governed by the articles in this division. The scope of the various articles in this division cannot be held to have been so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Athani Municipal Council case [(1969) 1 SCC 873 : (1970) 1 SCR 51] and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act. This judgment is an authoritative pronouncement by a 3-Judge Bench that the Limitation Act applies only to courts and not to quasi-judicial Tribunals. Athani s case was dissented from on a different proposition - that Article 137 is not confined to applications under the Code of Civil Procedure alone. So long as an application is made under any statute to a Civil Court, such application will be covered by Article 137 of the Limitation Act. 21. The stage is now set for a decision on which wide ranging arguments were made by counsel on both sides. In Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur, (1975) 4 SCC 22, a 3-Judge Bench was confronted with whether Section 14 of the Limitation Act applied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but Section 10(3-B) of the Sales Tax Act gives no jurisdiction to the revising authority to extend the limitation, even in such a case, for a further period of more than six months. 13. The three stark features of the scheme and language of the above provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in sub-section (3-B) of Section 10 of the Sales Tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule. 14. It cannot be said that by excluding the unrestricted application of the principles of Sections 5 and 14 of the Limitation Act, the legislature has made the provisions of Section 10 unduly oppressive. In most cases, the discretion to extend limitation, on sufficient cause being shown f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition) v. Shah Manilal Chandulal, (1996) 9 SCC 414, this Court held that a Land Acquisition Officer under the Land Acquisition Act not being a court, the provisions of the Limitation Act would not apply. The court concluded, after adverting to some of the previous judgments of this Court as follows:- 18. Though hard it may be, in view of the specific limitation provided under proviso to Section 18(2) of the Act, we are of the considered view that sub-section (2) of Section 29 cannot be applied to the proviso to sub-section (2) of Section 18. The Collector/LAO, therefore, is not a court when he acts as a statutory authority under Section 18(1). Therefore, Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a court under Section 5 of the Limitation Act. 19. Accordingly, we hold that the applications are barred by limitation and the Collector has no power to extend time for making an application under Section 18(1) for reference to the court. 25. Two other judgments of this Court need to be dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the said case, it was the District Judges who were discharging the functions of the appellate authority and being a court, it was held that the District Judge, functioning as the appellate authority, was a court and not persona designata and was, therefore, entitled to resort to Section 5 of the Limitation Act. That is not so in the instant case where the Rent Controller appointed by the State Government is a member of the Punjab Civil Services and, therefore, a persona designata who would not be entitled to apply the provisions of Section 5 of the Limitation Act, 1963, as in the other case. The fact that the District Judge himself also happened to be the appellate authority under the Rent Act would have been sufficient on the facts of the case for the Limitation Act to apply without going into the proposition that the Limitation Act would apply to tribunals. 26. Quite apart from Mukri Gopalan s case being out of step with at least five earlier binding judgments of this Court, it does not square also with the subsequent judgment in Consolidated Engg. Enterprises v. Principal secy., Irrigation Deptt., (2008) 7 SCC 169. A 3-Judge Bench of this Court was asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the Limitation Act, 1963 would be applicable to an application submitted under Section 34 of the Act of 1996 for setting aside an arbitral award. While discussing Parson Tools, this Court held: 25 In appeal, this Court held that (1) if the legislature in a special statute prescribes a certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess expressly provided. While dealing with Parson Tools, the learned Judge held: 56. In Parson Tools [(1975) 4 SCC 22] this Court did not hold that Section 14(2) was excluded by reason of the wording of Section 10(3-B) of the Sales Tax Act. This Court was considering an appeal against the Full Bench decision of the Allahabad High Court. Two Judges of the High Court had held that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default, could be excluded when computing the period of limitation for filing a revision under Section 10 of the said Act, by application of the principle underlying Section 14(2) of the Limitation Act. The minority view of the third Judge was that the revisional authority under Section 10 of the U.P. Sales Tax Act did not act as a court but only as a Revenue Tribunal and therefore the Limitation Act did not apply to the proceedings before such Tribunal, and consequently, neither Section 29(2) nor Section 14(2) of the Limitation Act applied. The decision of the Full Bench was challenged by the Commissioner of Sales Tax before this Court, contending that the Limitation Act did not apply to tribunals, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is in conflict with the judgment in the Consolidated Engineering Enterprises case, it is no longer good law. 28. The sheet anchor in Mukri Gopalan was Section 29(2) of the Limitation Act. Section 29(2) states:- 29. Savings.- (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 not expressly excluded by such special or local law. A bare reading of this Section would show that the special or local law described therein should prescribe for any suit, appeal or application a period of limitation different from the period prescribed by the schedule. This would necessarily mean that such special or local law would have to lay down that the suit, appeal or application to be instituted under it should be a suit, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the primary proceeding must be a suit, appeal or application filed in a Civil Court. Second, it is only when it comes to excluding time in an abortive proceeding that the word Court has been expanded to include proceedings before tribunals. 31. This judgment is in line with a large number of authorities which have held that Section 14 should be liberally construed to advance the cause of justice - see: Shakti Tubes Ltd. v. State of Bihar, (2009) 1 SCC 786 and the judgments cited therein. Obviously, the context of Section 14 would require that the term court be liberally construed to include within it quasi-judicial Tribunals as well. This is for the very good reason that the principle of Section 14 is that whenever a person bonafide prosecutes with due diligence another proceeding which proves to be abortive because it is without jurisdiction, or otherwise no decision could be rendered on merits, the time taken in such proceeding ought to be excluded as otherwise the person who has approached the Court in such proceeding would be penalized for no fault of his own. This judgment does not further the case of Shri Viswanathan in any way. The question that has to be answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. We have already held that the Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal such as the Collector (Appeals) mentioned in Section 128 of the Customs Act. However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles which advance the cause of justice, would nevertheless apply. We must never forget, as stated in Bhudan Singh Anr. v. Nabi Bux Anr., (1970) 2 SCR 10, that justice and reason is at the heart of all legislation by Parliament. This was put in very felicitous terms by Hegde,J. as follows: Before considering the meaning of the word held in Section 9, it is necessary to mention that it is proper to assume that the lawmakers who are the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficent provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof. The Court further quoted from Consolidated Engineering Enterprises an instructive passage: 21. In Consolidated Engg. Enterprises v. Irrigation Deptt. [(2008) 7 SCC 169] this Court held: (SCC p. 181, para 22) 22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified. (3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply. (5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. Explanation.-For the purposes of this section, minor includes a child in the womb. On the assumption that Section 6 does not apply on the facts of a given case, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of justice. It must not be forgotten as is pointed out in the concurring judgment in Consolidated Engineering that: Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders [(2006) 6 SCC 239] therefore lays down the correct legal position. 35. Merely because Parson Tools also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation - Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply de hors such period for the reason pointed out in Consolidated Engineering above, being the difference between exclusion of a certain period altogether under Section 14 principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing on the proposition canvassed by Shri Sanghi that Section 128 of the Customs Act forms a complete code by itself. What periods are to be excluded under Section 14 39. Shri Viswanathan, learned senior counsel appearing for the appellant, placed before us a judgment of the Andhra Pradesh High Court in which it was held that even prior to the institution of a particular proceeding, time taken in steps taken for prosecuting such proceedings should also be excluded. In Tirumareddi Rajarao Ors. v. The State of Andhra Pradesh Ors., AIR 1965 A.P. 388, the Andhra Pradesh High Court held that the period taken for preparatory steps before instituting proceedings should also be excluded. It said: 13. We may now turn to the Chambers Twentieth Century Dictionary for the meanings of the expression to prosecute . It means: To follow onwards or pursue in order to reach or accomplish; to engage in practise to follow up to pursue, chase, to pursue by law; to bring before a Court. 14. These meanings do not vouch the construction of the section advanced by the learned Government Pleader. In our opinion, the section does not render it essential that the prosecution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, if the appeal be filed on the last day of limitation. But if the appeal be filed earlier, the time from the date of the order impugned upto the actual date of filing of the appeal would certainly be the time during which the plaintiff can be said to be prosecuting another civil proceeding in a court of appeal. We are unable to endorse the view of the learned trial Judge on this point. A Division Bench of this Court consisting of Sir Gilbert Stone, C. J. and Niyogi, J., in the case of Kasturchand v. Wazir Begum' : (AIR 1937 Nag 1) : ILR (1937) Nag 291, held with reference to Article 11 (1) of the Limitation Act as follows: Then it is said that the plaintiff is out of time owing to the operation of Article 11 (1) of the Limitation Act which, in the case of a suit by a person against whom an order is passed on his objection in execution proceedings, fixes one year. The dates are as follows: the objection order was passed on 5-3-1928. The plaint was presented in one Court on 15-9-1928, of course in time. That was returned by that Court on 14-12-1928, for presentation to what that Court held to be the proper Court. The plaintiff challenging the correctness of that order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s results would follow. Take the case of a plaintiff or applicant who has succeeded at the first stage of what turns out to be an abortive proceeding. Assume that, on a given state of facts, a defendant - appellant or other appellant takes six months more than the prescribed period for filing an appeal. The delay in filing the appeal is condoned. Under explanation (b) of Section 14, the plaintiff or the applicant resisting such an appeal shall be deemed to be prosecuting a proceeding. If the six month period together with the original period for filing the appeal is not to be excluded under Section 14, the plaintiff/applicant would not get a hearing on merits for no fault of his, as he in the example given is not the appellant. Clearly therefore, in such a case, the entire period of nine months ought to be excluded. If this is so for an appellate proceeding, it ought to be so for an original proceeding as well with this difference that the time already taken to file the original proceeding, i.e. the time prior to institution of the original proceeding cannot be excluded. Take a case where the limitation period for the original proceeding is six months. The plaintiff/applicant files ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. Similarly, in India Electric Works Ltd. v. James Mantosh, (1971) 1 SCC 24, this Court held: 7. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words or other cause of a like nature must be construed liberally. Some clue is furnished with regard to the intention of the legislature by Explanation III in Section 14(2). Before the enactment of the Act in 1908, there was a conflict amongst the High Courts on the question whether misjoinder and non-joinder were defects which were covered by the words or other cause of a like nature . It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking misjoinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it. 43. As has been already noticed, Sarathy s case i.e. (2000) 5 SCC 355 has also held that the court referred to in Section 14 would include a quasi-judicial tribunal. There appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not enable a litigant to get a benefit beyond what is contemplated by the Section - that is to put the litigant in the same position as if the abortive proceeding had never taken place. What applies to the facts of this case: the limitation period in Section 128 pre-amendment or post amendment 44. Shri A.K. Sanghi, learned senior counsel appearing on behalf of the revenue, has strongly contended before us that the present appeal must attract the limitation period as on the date of its filing. That being so, it is clear that the present appeal having been filed before CESTAT only on 23.5.2003, it is Section 128 post amendment that would apply and therefore the maximum period available to the appellant would be 60 plus 30 days. Even if time taken in the abortive proceedings is to be excluded, the appeal filed will be out of time being beyond the aforesaid period. 45. It is settled law that periods of limitation are procedural in nature and would ordinarily be applied retrospectively. This, however, is subject to a rider. In New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840, this Court held: 5. On the plain language of Sections 110-A and 110-F there shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it unpractical for him to avail of the remedy. This principle has been followed by this Court in many cases and by way of illustration we would like to mention New India Insurance Co. Ltd. v.Smt Shanti Misra [(1975) 2 SCC 840 : (1976) 2 SCR 266] . The husband of the respondent in that case died in an accident in 1966. A period of two years was available to the respondent for instituting a suit for recovery of damages. In March, 1967 the Claims Tribunal under Section 110 of the Motor Vehicles Act, 1939 was constituted, barring the jurisdiction of the civil court and prescribed 60 days as the period of limitation. The respondent filed the application in July, 1967. It was held that not having filed a suit before March, 1967 the only remedy of the respondent was by way of an application before the Tribunal. So far the period of limitation was concerned, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the point. Substantive and procedural law 23. Substantive law refers to a body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. 24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act. 25. Law on the subject has also been elaborately dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal in that case could entertain the appeal even after the period of 90 days had expired provided sufficient cause for the delay was made out. 52. The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3.4.1992 under Section 128 pre amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25.3.1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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