TMI Blog2015 (12) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... days but not after 60 days from the date aforesaid, if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time. The words "but not after 60 days" are of great significance. These words indicate that there is a clear mandate that beyond the period of 60 days from the date on which the order is served upon the aggrieved person, the Appellate Tribunal has no power to condone the delay. SAFEMA is a special law and that section 12(4) provides for a period of limitation different from that prescribed under the Limitation Act, 1963. Section 29(2) of the Limitation Act, inter alia stipulates that 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 to the Limitation Act, provisions of section 3 thereof shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed by any such special or local law, the provisions contained in sections 4 to 24 of the Limitation Act shall apply only insofar as and to the extent to which, they are not expressly excluded by such specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , M.G. Road, Sector-2, Kandivli (W), Mumbai-67 (for short, the suit property ) alongwith a Mitsubishi Lancer car bearing registration No.GJ-18-AB-1171. The Petitioner claims to be the mortgagee of the suit property in the facts and circumstances narrated hereafter. 4. On 23rd August 2006, an order of detention was passed against Respondent No.3 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, COFEPOSA ). In view of the said detention, the provisions of SAFEMA were made applicable to Respondent No.3 as he was a notified person under the provisions of section 2(2)(b) of SAFEMA. Ms. Pravina L. Patel, 3rd Respondent's wife was also covered under the definition of relative as defined under section 2(2)(c) of SAFEMA. Thereafter, an enquiry in relation to Respondent No.3's properties were initiated by the authorities in October/November 2006. Summons were also issued to Respondent No.3 and his wife in January 2008 and Respondent No.3's statement was also recorded in March 2008. Thereafter, further enquiries were conducted which finally culminated in a show cause notice dated 1st September, 2010 being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners. By an order dated 4th November 2011, the said Application was granted and pursuant thereto, it is the claim of the Petitioners that they have, on or about 23rd January 2013, taken physical possession of the suit property. 9. Before taking physical possession of the suit property on 23rd January 2013, in furtherance of the measures taken under the provisions of the SARFAESI Act, the Petitioners by a Public Notice dated 10th February, 2012 sought to auction the suit property for recovery of its dues. 10. In view of the aforesaid Public Notice coming to the attention of the authorities under SAFEMA, the Joint Commissioner, by his letter dated 20th February 2012 called upon the Petitioners not to take further steps in respect of the suit property, as according to him, under section 14 of SAFEMA, there was an express bar in proceeding with the sale of the suit property once it had been declared as a forfeited property under section 7 of the said Act. A copy of the order passed under section 7 of SAFEMA and dated 23rd September, 2011 was also enclosed with the said letter. 11. In reply to the said letter, the Petitioners through their Advocates' letter dated 22nd Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this aspect. In view of this statement we are now only called upon to decide whether Respondent No.1 was justified in rejecting the appeal of the Petitioners on the ground that it was barred by limitation or whether Respondent No.1 ought to have condoned the delay, if any, and heard the Petitioners appeal on merits. 16. On this aspect, Mr. Kamat submitted that Respondent No.1 was in grave error in dismissing the Petitioners appeal on the ground that it was not filed within the time period prescribed under section 12(4) of SAFEMA. Mr. Kamat submitted that looking to the facts and circumstances of the present case, there was no delay in filing the present appeal. Mr. Kamat submitted that even though a copy of the order dated 23rd September, 2011 (and which was impugned in the appeal) was served upon the Petitioner on 20th February, 2012, the papers and proceedings which culminated in the said order, were admittedly served upon the Petitioner only on 29th May, 2012. The appeal before Respondent No.1 was thereafter filed on 6th June, 2012. He, therefore, submitted that looking to these dates, the appeal was filed within the time prescribed under section 12(4) of SAFEMA and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 12 of SAFEMA which read as under:- 12. Constitution of Appellate Tribunal.- (1) The Central Government may, by notification in the Official Gazette, constitute an Appellate Tribunal to be called the Appellate Tribunal for Forfeited Property consisting of a Chairman and such number of other members (being officers of the Central Government not below the rank of a Joint Secretary to the Government) as the Central Government thinks fit, to be appointed by the Government for hearing appeals against the orders made under Section 7, subsection (1) of Section 9 or Section 10. (2) The Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of the Supreme Court or of a High Court. (3) The terms and conditions of service of the Chairman and other members shall be such as may be prescribed. (4) Any person aggrieved by an order of the competent authority made under Section 7, sub-section (1) of Section 9 or Section 10, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal: Provided that the Appellate Tribunal may entertain any appeal after the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time. In other words, the period for filing the appeal under section 12(4) is a period of 45 days and if the appeal is not filed within the aforesaid time period, it has the discretion to condone the delay for an additional period of 15 days. The words but not after 60 days appearing in the proviso to section 12(4) are of great significance as it clearly mandates that the Appellate Tribunal would have no power to condone the delay beyond the period specified in the proviso to section 12(4). We will deal with this aspect a little later in this judgment. Before we proceed further, we must mention here that we have not dealt with the other sub-sections of section 12 as they are not really germane to the controversy raised before us. 20. Looking to the provisions of section 12(4), it is clear that time to file the appeal starts to run from the date on which the order is served upon a person who is aggrieved by the said order. As the section itself suggests any person aggrieved by the order of the Competent Authority, made under section 7, sub-section (1) of section 9 or section 10, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clear language of the proviso to section 12(4) which categorically stipulates that the Appellate Tribunal may entertain an appeal after the said period of 45 days but not after 60 days from the date aforesaid, if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time. The words but not after 60 days are of great significance. These words indicate that there is a clear mandate that beyond the period of 60 days from the date on which the order is served upon the aggrieved person, the Appellate Tribunal has no power to condone the delay. 23. It cannot be seriously disputed that SAFEMA is a special law and that section 12(4) provides for a period of limitation different from that prescribed under the Limitation Act, 1963. Section 29(2) of the Limitation Act, inter alia stipulates that 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 to the Limitation Act, provisions of section 3 thereof shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 thereof. To our mind, Parliament did not need to go any further. To hold that the Appellate Tribunal could entertain the appeal under section 12(4) even beyond the extended period as stipulated in the proviso thereof, would render the phrase but not after 60 days , wholly otiose. No principle of interpretation would justify such a result. We are, therefore, clearly of the view that under the provisions of section 12(4) read with the proviso thereto, the Appellate Tribunal had no power to condone the delay beyond the period of 60 days from the date on which the order impugned in the appeal was served on the aggrieved party. In the facts of the present case, admittedly, the appeal of the Petitioners was filed beyond the period of 60 days from the date on which the order was served upon them. We, therefore, find no infirmity in the impugned order dated 12th March, 2013 passed by Respondent No.1. 26. In taking this view, we are supported by a decision of the Supreme Court in the case ofUnion of India v/s Popular Construction Company. (2001) 8 SCC 470 The issue involved before the Supreme Court in the aforesaid decision was whether the Court entertaining a challenge to an Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act. The question then is - is such exclusion expressed in Section 34 of the 1996 Act? The relevant extract of Section 34 reads: 34. Application for setting aside arbitral award.-(1)- (2)*** (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 had 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. 8. Had the proviso to Section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5 [Mangu Ram v. Municipal Corpn. of Delhi, (1976) 1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll apply only insofar as and to the extent to which they are not excluded by the special or local law. In our case, beyond further period of 30 days and total period of 90 days, there is no further application of section 5 of the Limitation Act, 1963. The extent to which section 5 can be applied having been enumerated and set out in section 128(1) of the Customs Act, 1963, which is a special law, then, for the further delay in filing or presenting the Appeal, applicability of section 5 of the Limitation Act, 1963 is expressly ruled out. The language of section 128(1), which is a special law, therefore cannot be ignored or brushed aside. 29. In view of the authoritative pronouncements of the Supreme Court as well as a Division Bench of this Court, we are clearly of the view that Respondent No.1 had no power to condone the delay beyond the period of 60 days from the date on which the order was served upon the Petitioners. As stated earlier, it is admitted that the appeal of the Petitioners was not filed within the aforesaid period, and therefore, clearly time barred. In this view of the matter, no fault can be found with the impugned order requiring interference in our extraordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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