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Kabul Chawla Versus CPI India Real Estate Ventures Limited and others

2015 (5) TMI 941 - PUNJAB & HARYANA HIGH COURT

Delay in filing of appeal by 142 days - Condonation of delay as per Section 10-F of the Companies Act, 1956 - An application under Section 14 of the Limitation Act, seeking condonation of delay of 142 days - Held that:- The maximum period upto which an appeal can be filed in the Court even if filed late, is 120 days (i.e. 60+60 days). This Court cannot condone the delay beyond the period of 60 days. Even the plea raised by the appellant that earlier on account of ill advise, a writ petition was .....

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I 626 - HIGH COURT OF PUNJAB AND HARYANA], opined that the maximum period available to the appellant for preferring appeal to this Court is sixty+sixty days i.e. 120 days, subject to the condition that the appellant has shown sufficient cause for condonation up to sixty days beyond the prescribed period of sixty days and the provisions of Sections 4 to 24 of the Limitation Act have no application.The issue was thereafter considered by Hon'ble the Supreme Court in Chhattisgarh State Electricity B .....

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the delay, the same would amount express exclusion of Section 5 of the Limitation Act within the meaning of Section 29 (2) of the Limitation Act. - Decided against the appellant. - CAPP No. 34 of 2014 (O&M) - Dated:- 4-5-2015 - Mr. Rajesh Bindal, J. Mr. Ashok Aggarwal, Senior Advocate with Mr. Hemant Saini and Mr. Mukul Aggarwal, Advocates, for the appellant Mr. Sunil Gupta, and Mr. Anand Chhibbar, Senior Advocates with Mr. Prashant Mishra, Mr. J. S. Bhatia, and Mr. Gaurav Mankotia, Advocates, .....

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t no. 1 raised preliminary objection regarding maintainability of appeal before this Court on the ground that the same is time barred. While referring to Section 10F of the Act, he submitted that it provides a period of 60 days for filing appeal and further period of 60 days for which the delay could be condoned. In support of his plea, reliance was placed upon judgment of Hon'ble the Supreme Court in Union of India vs Popular Construction Co. (2001) 8 SCC 470, judgment of this Court in Pawa .....

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udgment of Hon'ble the Supreme Court in Chhattisgarh State Electricity Board vs Central Electricity Regulatory Commission and others (2010) 5 SCC 23. 3. Learned counsel for the appellant submitted that no doubt, impugned order was passed by the Board on 5.3.2014 and the appeal has been filed in this Court on 24.9.2014. However, application seeking condonation of delay of 142 days in filing thereof has been filed. There are sufficient reasons for condoning the delay in filing the appeal as in .....

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of delay will not apply. In such cases, this Court has ample inherent powers to condone the delay as there is nothing in the Act which bars the Court for exercising that power. He further submitted that when the appeal was filed, respondent no. 1 accepted notice in the appeal in Court which amounts to waiver of its right to raise the plea of limitation at a later stage. 4. In response to the contention raised by learned counsel for the applicant-appellant, learned counsel for respondent no. 1 su .....

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ific provision under the Act dealing with the issue. In the present case, Section 10-F of the Act clearly provides the period of limitation for filing appeal and also the period for which the delay can be condoned. 5. Heard learned counsel for the parties and perused the paper book. 6. The preliminary issue which arises for consideration in the present appeal is whether the same deserves to be entertained after condoning the delay of 142 days in filing thereof? 7. Section 10-F of the Act, which .....

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at the High Court may, if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. 8. A perusal of the aforesaid provisions shows that 60 days period has been provided for filing an appeal to this Court against an order passed by the Board from the date of communication of the decision or order of the Board on any question of law arising therefrom. Proviso to Section .....

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period upto which an appeal can be filed in the Court even if filed late, is 120 days (i.e. 60+60 days). This Court cannot condone the delay beyond the period of 60 days. Even the plea raised by the appellant that earlier on account of ill advise, a writ petition was filed, hence, taking support of Section 14 of the Limitation Act the delay is to be condoned, but such a plea is not available to the appellant as Section 14 of the Limitation Act has no application in appeals. 10. The interpretatio .....

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ufficient cause from making the application within the said period of three months, it may entertain an application within a further period of thirty days, but not thereafter. The relevant paras thereof are extracted below:- 1. The question which arises for determination in this case is whether the provisions of Section 5 of the Limitation Act, 1963, are applicable to an application challenging an award, under Section 34 of the Arbitration and Conciliation Act, 1996 (referred to hereafter as &qu .....

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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. 11. While considering the aforesaid judgment of Hon'ble the Supreme Court in Popular Construction Co.'s case (supra) and subsequent judgment in Gopal Sardar vs Karuna Sardar (2004) 4 SCC 252, this Court in Pawan Goel's case (supra), opined that the maximum period available to the appellant for pr .....

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y or even impliedly in a special or local law itself, it shall be presumed that the exclusion is express. Section 29(2) of the Act not only excludes the application of Section 5 of the Limitation Act but also other sections from Sections 4 to 24 (inclusive). Thus, Section 14 also stands excluded from its application for purposes of either condoning the delay or exclusion of the period on the ground envisaged therein notwithstanding existence of sufficient cause. Thus, even if the period spent be .....

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o the appellant for preferring the appeal was sixty + sixty days, i.e., 120 days up to March 24, 2007, subject to the condition that the appellant has shown sufficient cause for condonation up to sixty days beyond the prescribed period of sixty days. As noticed above, the initial period of 60 days in filing the appeal under Section 10F expired on January 23, 2007 and the extended period under the proviso to Section 10F expired on March 24, 2007. Hence, even if the contention of the appellant is .....

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h Muchhala's cases (supra). 13. The issue was thereafter considered by Hon'ble the Supreme Court in Chhattisgarh State Electricity Board's case (supra). It was with reference to filing of an appeal before Hon'ble the Supreme Court against order of Appellate Tribunal for Electricity. The period provided for filing of appeal in the Electricity Act, 2003, is 60 days from the date of communication of the order of the Tribunal. Proviso to Section 125 of the Electricity Act empowered t .....

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empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits, etc. The use of the expression within a further period of not exceeding 60 days' in the proviso to Sect .....

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his Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that d .....

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of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. xx xx xx 31. In CCE and Customs v. Hongo India (P) Ltd. (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that the High Court has no power to condone delay beyond the period specified in Section 35-H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of .....

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d of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. * * * 32. As pointed out earlier, the language used in Sections 35, 35- B, 35-EE, 35-G and 35-H makes the position clear that an appeal an .....

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e prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. * * * 35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this r .....

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f the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms .....

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Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. 14. Similar view was expressed by Division Bench of Delhi High Court in FAO (OS) No.485-86 of 2011- Delhi Development Authority vs M/s Durga Construction Company, decided on 7.11.2013. 15. What ca .....

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