TMI Blog2019 (11) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 5 of the Limitation Act deals with the extension of the prescribed period in particular exigencies. The provision applies to the Court and is excluded in the application to the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). It provides that if the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within limitation, the Court may admit the same after the prescribed period. Explanation attached to Section 5 makes it clear that in case the appellant or the applicant was misled by any order, practice, or judgment of the High Court in ascertaining or computing the prescribed period, may be sufficient cause within the meaning of Section 5. Section 81 deals with revision, and section 84 deals with the Limitation Act. Section 84 makes a vital difference for the Chapter in which the provision of section 81 finds a place. Only the provisions of sections 4 and 12 of the Limitation Act are made applicable, and other provisions stand excluded by limited application of the provisions of the Limitation Act. The decision under the Assam VAT Act has turned on the aforesaid crucial provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The High Court vide impugned judgment and order dated 19.11.2018, has refused to condone the delay in the revision filed under Section 48 read with Section 64(5) of the Act of 2005, against the order passed by Himachal Pradesh Tax Tribunal. The Division Bench of the High Court relying upon the decision of a Coordinate Bench in CMP(M) No.1371 of 2017 titled State of Himachal Pradesh others v. Tritronics India Private Limited, has held that provision of Section 5 of the Limitation Act, cannot be applied and the High Court cannot condone the delay. The revision has to be filed within 90 days, as provided in Section 48 of the Act of 2005. 3. The provisions contained in Section 48 of the Act of 2005, relating to the revisional power of the High Court, read as under: 48. Revision to High Court. ( 1) Any person aggrieved by an order made by the tribunal under subsection (2) of section 45 or under subsection (3) of section 46, may, within 90 days of the communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 5 of the Limitation Act, stand excluded by necessary implication by the language employed in Section 84. The High Court has also referred to the decision of this Court in Commissioner of Customs and Central Excise v. Hongo India Private Limited, (2009) 5 SCC 791, rendered in the context of the provisions contained in Section 35 of the Central Excise Act, 1944, in which it has been held that reference has to be made to the High Court within 180 days, and there is no power of the High Court to condone the delay after the expiry of the prescribed period of 180 days. Thus, the High Court has held that provisions of Section 5 of the Limitation Act, are not applicable and stand excluded in the matter of revision filed under Section 48 of the Act of 2005. 5. The provisions contained in Section 29 of the Limitation Act deals with savings. The provisions in respect to the limitation prescribed for any suit, appeal or application by any special or local law, is different from the period prescribed by the Schedule, the provisions of Section 3 shall apply if the Schedule prescribed such period. The provisions contained in Sections 4 to 24 shall apply only in so far as and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 81, 82 or 117. The election petition has to be preferred within the period prescribed in Section 81. Thus, the provision was held to be mandatory. The noncompliance with which visits the penalty of the petition being dismissed. Following observations have been made: 17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section 29(2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Sections 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. (emphasis added) 8. In Sakuru v. Tanaji, AIR 1985 SC 1279, it has been held that the provisions of the Limitation Act apply only to proceedings in Courts and not to appeals or applications of bodies other than Courts such as quasijudicial Tribunals or executive authorities. Though the bodies or authorities may be conferred with the powers under the Codes of Civil or Criminal Procedure, however, special statute may contain an express provision conferring on the Appellate Authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. In the absence of such provisions, Section 5 would have no application. 9. In Lata Kamat v. Vilas, (1989) 2 SCC 613, provisions contained in Section 28(4) of the Hindu Marriage Act, came up for consideration, wherein it was held that limitation prescribed therein is different from the Schedule of Limitation Act. Regarding the provisions of Section 29(2) of the Limitation Act, it was observed that the provisions of the Hindu Marriage Act do not exclude the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Sections 3, 4 to 24, Limitation Act, 1963 would at once apply to the special law. The result is that the court hearing the appeal from the decree or order passed under the Hindu Marriage Act would under Section 3 of the Limitation Act have the power to dismiss the appeal if made after the period of limitation of 30 days prescribed therefor by the special law. Similarly, under Section 5 for sufficient cause, it will have the power to condone the delay. Likewise, under Section 12(2), the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, Section 12(2) of the Limitation Act is attracted, and the appellants in all three appeals will be entitled to exclude the time taken by them for obtaining a certified copy of the decree and order. The appeals are, therefore, within time. Similar is the view taken by the Calcutta High Court in Sipra Dey case AIR 1988 Cal 28and also the M.P. High Court in Kantibai case AIR 1978 MP 245. It is therefore clear that the contention advanced by the learned counsel for the respondent based on the Limitation Act also is of no substance. 10. In State of W.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special law under Section 19 of the Contempt of Courts Act, and limitation in filing Letters Patent appeal stands attracted. In consequence, Sections 4 to 24 of the Limitation Act stands attracted to Letters Patent appeal insofar as and to the extent to which they are not expressly excluded either by special or local law. Since the rules made on the appellate side, either for entertaining the appeals under clause 15 of the Letters Patent or appeals arising under the contempt of courts, had not expressly excluded, Section 5 of the Limitation Act becomes applicable. We hold that Section 5 of the Limitation Act does apply to the appeals filed against the order of the learned Single Judge for the enforcement by way of a contempt. The High Court, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits. 11. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, the question arose whether Appellate Authority constituted u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099 , when the First Schedule of the Limitation Act prescribes no timelimit for a particular appeal, but the special law prescribes a timelimit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period, while the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former, and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act. 11. It is also obvious that once the aforesaid two conditions are satisfied, Section 29(2), on its own force will get attracted to appeals filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time frame is sixty days as prescribed in Section 417(4) for making an application for special leave under sub-Section (3) of that section was mandatory and inexorable time limit which could not be relieved against or relaxed, and it excluded the applicability of Section 5 of the Limitation Act. It has also been held that the provision of a period of limitation in a howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The provisions of Section 5 of the Limitation Act have been held to be applicable to condone the delay in applying under Section 417(4), Code of Criminal Procedure. The Court has observed: 6. The question which arose for consideration in Kaushalya Rani case was apparently the same as in the present case, namely, whether the time limit of sixty days prescribed in subsection (4) of Section 417 for making an application for special leave under subsection (3) of that section could be extended by invoking Section 5 of the Indian Limitation Act, 1908. This Court held that subsection (4) of Section 417 laid down a special period of limitation for an application by a complainant for special leave to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded, Section 29, subsection (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, subsection (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, subsection (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani case AIR 1964 SC 260 can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cause for not preferring the application within such time limit. The order granting special leave was in the circumstances, not an order outside the power of the High Court. 13. In Union of India v. Popular Construction Co., (2001) 8 SCC 470, the Court considered the question of applicability of the provisions contained in Section 5 of the Limitation Act to the proceedings under Section 34(3) of the Arbitration and Conciliation Act, 1996. The provisions contained in Section 34 of the Arbitration and Conciliation Act, 1996, came up for consideration. Relevant provisions contained in Section 34(3) is extracted hereunder: 34. Application for setting aside arbitral award.- (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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 29(2) of the Limitation Act. 14. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department Ors., 2008 (7) SCC 169, the question arose for consideration concerning the limitation period prescribed in Section 34(3) of the Arbitration Conciliation Act, for setting aside of the arbitral award. It has been held that Section 14 of the Limitation Act is not excluded. However, applicability of Section 5 of the Limitation Act is excluded. Following is the relevant discussion: 53. Subsection (3) of Section 34 of the AC Act prescribes the period of limitation for filing an application for setting aside an award as three months from the date on which the applicant has received the arbitral award. The proviso thereto vests in the court discretion to extend the period of limitation by a further period not exceeding thirty days if the court is satisfied that the applicant was prevented by sufficient cause for not making the application within three months. The use of the words but not thereafter in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question arose for consideration whether the High Court has the power to condone delay beyond the period specified in section 35H of the Central Excise Act. The limitation for an appeal and reference is within 180 days from the date of communication of the decision or order. Because of the provisions and the Act, it was held that the time limit prescribed for making a reference to the High Court is absolute and unextendible by Court under section 5 of the Limitation Act. The Central Excise Act has been held to be a complete Code by itself. The import of expressly excluded in section 29(2) was considered, and it has been observed that even in the absence of express exclusion, the court can examine the extent of exclusion of Limitation Act by a special law, based on the provisions or the nature of the subject matter. This Court has considered the scheme of the various provisions and the scheme thereunder thus: 4. Chapter VIA of the Act deals with appeals. As per Section 35, any person aggrieved by any decision or order passed by a Central Excise Officer may file an appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the High Court under Section 35H( 1) of the Act before amendment of the Central Excise Act by Act 49 of 2005 (w.e.f. 28-12-2005) by which several provisions of the Act were omitted including Section 35H. However, in view of the reference made, it is but proper to consider the question referred before us. ** ** ** 32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G, and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an award at any time. It cannot, therefore, be said that the legislative intent was to exclude the applicability of Section 5 of the Limitation Act to Section 19 of the 1983 Act. 33. In our opinion, it is unnecessary to delve into the question whether the Arbitral Tribunal constituted under the Act is a court or not for answering the issue in the present case as the delay in filing the revision has occurred before the High Court, and not the Arbitral Tribunal. Answer to Point (ii) 34. In light of the reasons recorded above, we are of the opinion that the case of Nagar Palika Parishad, Morena (2004) 2 MPJR (SN) 374 , was decided erroneously. Section 5 of the Limitation Act is applicable to Section 19 of the 1983 Act. No express exclusion has been incorporated therein, and there is neither any evidence to suggest that the legislative intent was to bar the application of Section 5 of the Limitation Act on Section 19 of the 1983 Act. The cases which were relied upon to dismiss the special leave petition, namely, Nasiruddin (2003) 2 SCC 577 and Popular Construction (2001) 8 SCC 470 , can be distinguished both in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear that the legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act, thereby excluding the applicability of the other provisions. 21. The judgment in Mangu Ram (1976) 1 SCC 392 , would not come to the aid of the appellant as the Court found that there was no provision under CrPC from which legislative intent to exclude Section 5 of the Limitation Act could be discerned and, therefore, Section 29(2) of the Limitation Act was taken aid of. Similar situation prevailed in Anshuman Shukla case (2014) 10 SCC 814 . On the contrary, in the instant case, a scrutiny of the scheme of the VAT Act goes to show that it is a complete code not only laying down the forum but also prescribing the timelimit within which each forum would be competent to entertain the appeal or revision. The underlying object of the Act ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. ** ** ** 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ) ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of section 46(1), and the period provided is 5 years for suo motu exercise of revisional power. However, the tribunal has the power to entertain application within 60 days from the date of communication of the order. When we consider the provisions of section 48, revision is provided to the High Court, and an aggrieved person may within 90 days of the communication of such order, file a revision. Section 48(1) nowhere expressly excludes the applicability of provisions of the Limitation Act. The provisions of section 5 are applicable to Section 48 as they are not expressly excluded by the provisions under the Act of 2005. More so, in view of the provisions in section 45(4), which makes provisions to condone the delay like the Limitation Act, conferring power upon an authority also to condone delay. Further, suo motu revision has also been provided under section 46. In section 48, there is no express exclusion. Because of the scheme of the Act, it cannot be inferred that by implication, the provisions of section 5 of the Limitation Act are excluded. Provisions contained in section 29(2) of the Limitation Act would be attracted as there is no express exclusion or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
