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2016 (11) TMI 1259 - ALLAHABAD HIGH COURT

2016 (11) TMI 1259 - ALLAHABAD HIGH COURT - TMI - Condonation of delay - Divisional Commissioner exercising his jurisdiction under the Societies Registration Act, 1860 authority to condone delay - Held that:- In the facts of the present case, immediately after the order had been passed by the Registrar, the respondent preferred a Writ Petition which was dismissed on the ground of alternative remedy of preferring an appeal under Section 12-D(2) of the Act of 1860. After passing of such order, pet .....

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unless delay is condoned, it would not be possible to challenge the order. - In the present case, Commissioner has condoned delay in filing of appeal, for which source of power can be traced to the principles contained under Section 14 of the Act of 1963. Although provisions of Section 14 ipso facto do not apply but its principles are clearly attracted. The Commissioner was thus right in condoning delay. No interference is thus warranted in exercise of writ jurisdiction of this Court under .....

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tion Act, 1860. The order is challenged essentially on the ground that the Divisional Commissioner exercising his jurisdiction under the Societies Registration Act, 1860 (hereinafter referred to as the 'Act of 1860') has no authority to condone delay under the Act, and since authority does not act as a 'Court', the provisions of the Limitation Act are not attracted, rendering the order illegal for want of jurisdiction. 2. Facts relevant for the present purposes are that Pilgrim&# .....

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ation. The Assistant Registrar, Firms, Societies and Chits rejected the application of respondent no.2, vide his order dated 12th March, 2012. This order of Assistant Registrar was challenged before this Court in a Writ Petition No.23181 of 2012, which came to be dismissed, in view of the availability of alternative remedy of filing an appeal, vide order dated 11th May, 2012, which reads as under:- "1. Learned counsel for the petitioner could not dispute that in the present case the registr .....

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iew of the observations made, an appeal has been preferred by respondent no.2 before the Commissioner, Varanasi Division, Varanasi, on 17th May, 2012, alongwith an application under Section 5 read with Section 14 of the Limitation Act, 1963 for condoning delay in filing of appeal. The appeal was admitted by the Commissioner on 13th April, 2015. An application was filed by the present petitioner for recall of the order dated 13th April, 2015, on the ground that no opportunity of contest on the as .....

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on merits. This order then came to be challenged by filing a Writ Petition No.56016 of 2015, which was entertained, and following interim protection was granted on 1.10.2015:- "Sri Somesh Khare and Smt. Komal Khare have put in appearance on behalf of second respondent. Sri Khare prays for and is granted three days time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within two days thereafter. Put up on 14 October 2015 in the additional cause list. The submission of t .....

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n and admit the appeal. The submission requires consideration. Till then, further proceedings in Appeal No.191 of 2012 pending before the Commissioner, Varanasi Division, Varanasi shall remain stayed." 4. Ultimately the writ petition got disposed of on 24.11.2015, vide following order:- "Heard Sri Ashish Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Somesh Khare along with Ms.Komal Khare, learned counsel for r .....

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015 the Commissioner, on the application of the petitioner to decide the question of limitation first, has directed to consider the question of limitation at the time of deciding the appeal on merits. While assailing these orders Sri Srivastava, learned counsel for the petitioner submits that the respondent-appellant has filed an application for condonation of delay in filing the appeal before the Commissioner, therefore, without condonnation of delay there could be no appeal and unless there wa .....

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). Sri Khare, who appears for respondent no.2 submits that in view of sub-section (2) of Section 29 of the Limitation Act read with Section 12-D of the Societies Registration Act the appeal is within time and if it is treated to be beyond time the Commissioner has power to condone the delay. In support of his submission he has placed reliance upon the judgment the Apex Court in Mukri Gopalan vs. Cheppilat Pathanpurayil Aboobacher (AIR 1995 SC 2272). Without addressing myself on the points and th .....

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king note of the concept of speedy justice without disturbing the order of admission, it is provided that before deciding the appeal on merit the question of limitation shall be decided first by the Commissioner after hearing both the sides, if possible within a period of three months from the date of production of a certified copy of the order of this Court. Further fate of the appeal would depend upon the fate of the order passed on the point of limitation. With the aforesaid observation, the .....

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the application under Section 5/14 of the Limitation Act with the observation that there was no intentional delay in filing of the appeal, and sufficient grounds for its condonation was disclosed. It is this order of Commissioner dated 13th June, 2016, which is put to challenge in the present writ petition. 6. Learned counsel for the petitioner submits that the Divisional Commissioner while exercising his powers under Section 12-D(2) of the Act does not act as a court, and consequently, the prov .....

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rned counsel in support of such contention placed reliance upon judgments of the Apex Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra [AIR 1974 SC 480], The Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. M/s Parson Tools and Plants, Kanpur [AIR 1975 SC 1039], Anwari Basavaraj Patil and others Vs. Siddaramaiah and others [1993(1) SCC 636], Gopal Sardar Vs. Karuna Sardar [2004 (4) SCC 252], L.S. Synthetics Ltd. Vs. Fairgrowth Financial Services Ltd. And another [2004(11) SCC 456], Co .....

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tion No.(4) of 2001, decided on 13.9.2005, Mantri Khadi Gram Udyog Samiti, Harijan Gurukul Heera Patti, Sadar, District Azamgarh Vs. The Prescribed Authority, Azamgarh and others in Writ Petition No.45385 of 2012, decided on 25.9.2012, as well as judgment of the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills Pvt. Ltd. Vs. State Bank of India in Writ Petition No.2393 of 2011, decided on 5.9.2011. 7. Sri Somesh Khare, learned counsel for the respondents, per contra, submits that the .....

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re, and the time spent in pursuing a wrong remedy since was bona fide, it is liable to be excluded by virtue of Section 14 of the Act. Learned counsel has placed reliance upon Constitution Bench judgment in Vidyacharan Shukla Vs. Khubchand Baghel reported in AIR 1964 SC 1099, as well as judgment of Apex Court in Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker reported in AIR 1995 SC 2272. 8. I have heard Sri Ashish Kumar Srivastava, learned counsel for the petitioner, Learned Standing Couns .....

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in writing, cancel the registration of any society on any of the following grounds:- (a) that the registration of the society or of its name or change of name is contrary to the provisions of this Act or of any other law for the time being in force; (b) that its activities or proposed activities have been or are or will be subversive of the objects of the society or opposed to public policy; [(c) that the registration or the certificate of renewal has been obtained by misrepresentation or fraud .....

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ision of the Commissioner under sub-section (2), shall be final and shall not be called in question in any court.]" 10. Section contemplates filing of appeal against an order made under sub-section 1 of Section 12-D, within one month from the date of communication of such order. The Act does not confer jurisdiction upon the appellate authority to condone delay in filing of appeal. According to the respondents, power to condone delay is available to the appellate authority by virtue of Secti .....

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ns 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law." 11. Submission is that Act of 1860 is a special law relating to societies, which prescribes a period of limitation in filing of appeal. Since no corresponding provision exists in the schedule to Limitation Act, 1963, as such a different period exists providing for Limitation Act and Act of 1860, and accordingly necessary ingredients exist for Secti .....

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upply and Purchase) Act, 1953 acted as a revenue court or whether he was a persona designata. It was held that the Divisional Commissioner had been constituted as appellate authority under the Act. That showed that the Divisional Commissioner was made an appellate court not as persona designata but as a revenue court. That being so it was obvious that Section 5 of the Act applied to appeals before Divisional Commissioner and he could condone the delay in filing appeals. It becomes obvious that t .....

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ily and implicitly based on the applicability of Section 29(2) but for which Section 5 of the Limitation Act would not have been made applicable to such revision proceedings before revenue court functioning under the special law. Before parting with the discussion on this question we may also refer to one submission of Shri Nariman. He submitted that Sections 4 to 24 of the Limitation Act would apply to civil courts as duly constituted under the Civil Procedure Code and if that is so even if the .....

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iled before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these Sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. Consequently, even this contention of Shri Nariman cannot be countenanced." 12 .....

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pex Court in M.P. Steel Corporation Vs. Commissioner of Central Excise, reported in 2015(7) SCC 58. Question as to whether provisions of the Limitation Act would be applicable in proceedings before quasi-judicial tribunal/forum or would be applicable only to a 'court', as is understood in strict sense of being part of judicial branch of the State, has been answered. The dispute was examined by Apex Court in the context of an appeal filed under Section 128 of the Customs Act. Their Lordsh .....

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ct, 1963 in paras-11 onwards their Lordships observed as under in para-19 of the report:- "19. 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 .....

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apter V of Part VI. Chapter IV of Part V deals with the Supreme Court and Chapter V of Part VI deals with the High Courts and courts subordinate thereto. When the Constitution uses the expression "court", it refers to this Court system. As opposed to this court system is a system of quasi-judicial bodies called Tribunals. Thus, Articles 136 and 227 refer to "courts" as distinct from "tribunals". The question in this case is whether the Limitation Act extends beyond .....

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espect we differ from the view taken by the two-judge bench of this Court 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 1 .....

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ticing the judgments of the Supreme Court in Mukri Gopalan (supra), CST Vs. Madan Lal Das & Sons [1976(4) SCC 464], and CST Vs. Parson Tools and Plants [1975(4) SCC 22], their Lordships observed as under in paras-28 to 33 of the report:- "28. Two other judgments of this Court need to be dealt with at this stage. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, a 2-Judge Bench of this Court held that the Limitation Act would apply to the appellate authority constit .....

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uot;18. ... If the Limitation Act does not apply then neither Section 29(2) nor Section 14(2) of the Limitation Act would apply to proceedings before him. But so far as this Court is concerned it did not go into the question whether Section 29(2) would not get attracted because the U.P. Sales Tax Act Judge (Revisions) was not a court but it took the view that because of the express provision in Section 10(3)(B) applicability of Section 14(2) of the Sales Tax Act was ruled out. Implicit in this r .....

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that in revisional proceedings before the Sales Tax authorities functioning under the U.P. Sales Tax Act Section 29(2) cannot apply as Mr. Nariman would like to have it." It then went on to follow the judgment reported in The Commissioner of Sales Tax, U.P. v. M/s. Madan Lal Das & Sons, Bareilly, (1976) 4 SCC 464 which, as has been pointed out earlier, is not an authority for the proposition that the Limitation Act would apply to Tribunals. In fact, Mukri Gopalan's case was disting .....

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re, 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 th .....

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ction 34(3) of the Arbitration and Conciliation Act, 1996. After discussing the various provisions of the Arbitration Act and the Limitation Act, this Court held: "23. At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the pro .....

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ill apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between .....

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bility of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four 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 op .....

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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." 30. While discussing Parson Tools, this Court held: "25......In appeal, this Court held that (1) if the legis .....

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efore such tribunals. 26. From the judgment of the Supreme Court in CST [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] it is evident that essentially what weighed with the Court in holding that Section 14 of the Limitation Act was not applicable, was that the appellate authority and the revisional authority were not "courts". The stark features of the revisional powers pointed out by the Court, showed that the legislature had deliberately excluded the application of the prin .....

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e not "courts". In view of these glaring distinguishing features, this Court is of the opinion that the decision rendered in CST [(1975) 4 SCC 22 :1975 SCC (Tax) 185 : (1975) 3 SCR 743] did not decide the issue which falls for consideration of this Court and, therefore, the said decision cannot be construed to mean that the provisions of Section 14 of the Limitation Act are not applicable to an application submitted under Section 34 of the Act of 1996." 31. In a separate concurrin .....

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ided." 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 exclu .....

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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, and Section 14(2) of the Limitation Act was excluded in principle or by analogy. This Court upheld the view that the Limitation Act did not apply to tribunals, and that as the revisional authority under Section 10 of the U.P. Sales Tax Act was a tribunal and not a court, the Limitation Act was inapplicable. This .....

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ix months. The observation that pendency of proceedings of the nature contemplated by Section 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation and such extension cannot be for a period in excess of the ceiling period prescribed, is in the light of its finding that Section 14(2) of the Limitation Act was inapplicable to revisions under Section 10(3-B) of the U.P. Sales Tax Act. These observations cannot be interpreted as laying dow .....

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ation Act applies, the decision in Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] which related to a proceeding before a Tribunal to which Section 14(2) of the Limitation Act did not apply, has no application." 32. Obviously, the ratio of Mukri Gopalan does not square with the observations of the 3-Judge Bench in Consolidated Engineering Enterprises. In the latter case, this Court has unequivocally held that Parson Tools is an authority for the proposition that the L .....

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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 describe .....

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udicial bodies or Tribunals. It is clear, therefore, that only when a suit, appeal or application of the description in the schedule is to be filed in a court under a special or local law that the provision gets attracted. This is made even clearer by a reading of Section 29(3). Section 29(3) states:- "29. Savings.- (1)-(2) * * * (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other pr .....

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including Section 29(2) would apply only to the three kinds of proceedings mentioned all of which are to be filed in courts." 14. In view of clear annunciation of law by the Supreme Court in M.P. Steel Corporation (supra), argument advanced on behalf of respondents that the appellate authority has jurisdiction to condone delay under the provisions of the Limitation Act, in view of the judgment in Mukri Gopalan (supra) must fail. Admittedly, the Commissioner under Section 12-D(2) while func .....

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5. After holding that provisions of Limitation Act, 1963 would not apply to proceedings before the quasi-judicial authorities, Hon'ble Supreme Court proceeded further in the matter and observed as under in para-38 of the judgment in M.P. Steel Corporation (supra):- "38. 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, th .....

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e 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 representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the g .....

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lieve that it represents the legislative intent." After noticing various judgments on the issue, their Lordships have been pleased to hold that principle of Section 14 nevertheless apply to proceedings before the quasi-judicial authorities/tribunal. Para-43 of the judgment in M.P. Steel Corporation (supra) is reproduced:- "43. 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 ta .....

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excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the concerned statute continues to be the stated period and not more than the stated period. We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimatel .....

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ding, 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 in .....

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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 proceed .....

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elay has been condoned. Since the principles underlying Section 14 of the Limitation Act are attracted, as such, the period spent in pursuing a wrong remedy is liable to be condoned. 18. In the present case, if principles of Section 14 are not applied, grave hardship would be otherwise caused to respondent Pilgrim's Mission. The respondent in this case was diligently pursuing remedy against the order of Registrar by filing a writ petition, and unless delay is condoned, it would not be possib .....

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e prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court." Except for the exclusion of last condition that appellate authority is not a  .....

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he issue has been answered in para-52 of the judgment, which is conveniently reproduced:- "52. 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 appears to be no reason for limiting the reach of the expression "prosecuting with due diligence" to institution of a proceeding alone and not to the date on which the cause of action for such proceeding might arise in .....

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Section 14 by liberalizing it. Thus, under explanation (b) a person resisting an appeal is also deemed to be prosecuting a proceeding. But for explanation (b), on a literal reading of Section 14, if a person has won in the first round of litigation and an appeal is filed by his opponent, the period of such appeal would not be liable to be excluded under the Section, leading to an absurd result. That is why a plaintiff or an applicant resisting an appeal filed by a defendant shall also be deemed .....

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omething similar to it. Therefore properly construed, explanation (a) also confers a benefit and does not by a side wind seek to take away any other benefit that a purposive reading of Section 14 might give. We, therefore, agree with the decision of the Madhya Pradesh High Court that the period from the cause of action till the institution of appellate or revisional proceedings from original proceedings which prove to be abortive are also liable to exclusion under the Section. The view of the An .....

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esh Power Corporation Committee and others Vs. Lanco Kondapalli Power Limited and others, reported in 2016 (3) SCC 468. Paras- 24 & 32 to 35 of the judgment are reproduced:- "24. Mr. Sundaram placed reliance upon judgment in the case of M.P. Steel Corporation (supra) to support his submission that Limitation Act applies only to courts stricto-sensu and not to quasijudicial tribunals. It may be noted here that the matter in M.P. Steel Corporation (supra) had arisen from proceedings under .....

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- whether the bar of limitation is required to be respected by the Commission on the ground that there is no provision in the Electricity Act conferring additional rights upon a party moving the Commission for relief so as to claim even such reliefs which stand barred by limitation before the Civil Court or even for arbitral proceedings. The other ancillary issue required to be answered is - whether by virtue of provisions of the Electricity Act 2003 the Limitation Act has been made applicable t .....

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the impugned order by APTEL permitting application of principles on Section 14 of the Limitation Act is in accordance with law or warrants interference now requires to be answered on the basis of law as well as facts. In law, the APTEL could grant exclusion of certain period on the basis of principles under Section 14 in view of law laid down or clarified in M.P. Steel Corporation (supra). On facts, although the parties have argued at length, we find no difficulty in holding that APTEL has adopt .....

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the Arbitration Act was rightly not pursued further by Mr. Giri after some initial arguments. But since this issue was touched, we have looked at the entire Article 14 of the PPA as well as the notice dated 8.9.2003 and we find no difficulty in holding it as the notice for arbitration which amounted to initiation of arbitral proceedings as contemplated by Section 21 of the Arbitration Act. 35. A spirited argument was advanced on behalf of appellant that after the judgment of this Court in Gujar .....

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