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2018 (2) TMI 487

order of NCLT - Held that:- In the present case, the Section 417(3) does not merely contain the initial period of 45 days, Section 417(3) goes on to state that another period of 45 days, being a grace period given by the legislature which cannot be exceeded, alone would apply, provided sufficient cause is made out within the aforesaid grace period. As has been held by us above, it is the second period, which is a special inbuilt kind of Section 5 of the Limitation Act in the special statute, which lays down that beyond the second period of 45 days, there can be no further condonation of delay. - In view of the language of the proviso to Section 421(3) which contains mandatory or peremptory negative language and speaks of a second period .....

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ction 34(3) proviso of the Arbitration Act, 1996 which contains the words but not thereafter which Union of India vs. Popular Construction Co. (2001) 8 SCC 470 considered. He further points out that, in any case, under Section 433 of the Act, the provisions of the Limitation Act, 1963 shall, as far as may be, apply to Appeals before the Appellate Tribunal and that therefore, Section 5 would be applicable to condone the delay beyond the period of 90 days. He has buttressed his submission by referring to various decisions of this Court. 3) Before coming to the judgments of this Court, it is important to first set out Section 421(3) and Section 433 of the Act. These provisions read as follows: 421. Appeal from orders of Tribunal.- **** **** ** .....

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period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time limit of 45 days, which, as has been pointed out by us above, is peremptory in nature. 6) We are fortified in this conclusion by the judgment of this Court in Chhattisgarh SEB v. Central Electricity Regula .....

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an 120 days. The aforesaid judgment was reiterated and followed in ONGC v. Gujarat Energy Transmission Corporation Limited, 2017 (5) SCC 42 at Para 5. 7) It now remains to deal with the decisions cited by learned counsel appearing on behalf of the appellant. The first is the judgment in Guda Vijayalakshmi vs. Guda Ramachandra Sekhara Sastry, (1981) 2 SCC 646. In that case, a Transfer Petition was filed under Section 25, CPC, 1908 in this Court. A preliminary objection was taken stating that in view of Sections 21 and 21A of the Hindu Marriage Act, 1955, Section 25 would not be applicable. This was turned down by this Court stating that Section 21 would not apply to substantive provisions of the Code as apart from procedural provisions. Equa .....

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elating to search as enacted in Section 165 shall be followed. 9) This case again does not take the matter any further. In fact, the ratio of the judgment as far as this case is concerned is that the expression so far as may be only means to the extent possible. If not possible, obviously the Limitation Act would not apply. We have already held that it is not possible for Section 5 of the Limitation Act to apply given the peremptory language of Section 421(3). 10) The third judgment is Mangu Ram vs. Municipal Corporation of Delhi, (1976) 1 SCC 392. In this judgment, Section 417 of the Code of Criminal Procedure, 1898 provided for special leave to appeal from an order of acquittal. Section 417 (4) required that the application for special le .....

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