TMI Blog2021 (3) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... f a litigant was bonafide prosecuting his rights in a Court / Tribunal due to wrong advise, the limitation shall remain in limbo , which is the underlying Principle of Section 14 of the Limitation Act, 1963 - The essence of sufficient cause is whether it was an act of prudence or reasonable man on the part of person filing an Appeal . It is to be taken note of that whether the Appellant had acted with reasonable diligence in prosecuting his Appeal . Although an Appeal is filed after the expiry of 30 days, if the Tribunal is satisfied that there was sufficient cause in not filing an Appeal , but such period had not exceeded 15 days, this Tribunal bearing in mind that an axiomatic principle in law that if a party/litigant was involved in a Bonafide Litigious Activity , then, the said time spent in such litigation can be excluded, because of the fact that the said party had acted with reasonable diligence in prosecuting his Appeal - in the present case, the action of the Petitioner/Appellant in moving the Hon ble Supreme Court of India in Civil Appeal No.3169 of 2019 after the Impugned Order dated 25.6.2019 passed by the Adjudicating Authority , instead of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Review of the first impugned order dated 25.6.2019 passed by the Adjudicating Authority was filed in Civil Appeal No.87/CTB/2019 by the Appellant, before the Adjudicating Authority . In fact, the Review Application was filed within 30 days of the order of the Hon ble Supreme Court. 4. It is represented on behalf of the Appellant/Petitioner that in Review Application , the petitioner/bank had taken a plea (i) there was an error apparent on the face of record in regard to the first impugned order dated 25.6.2019 passed by the Adjudicating authority , pertaining to the application of the judgement of the Hon ble Supreme Court in Dharani Sugars case, (ii) Section 7 of the Insolvency Bankruptcy Code proceedings were initiated in December 2017, based on the Reserve Bank of India letter dated 28.8.2017 and not the Reserve Bank of India Circular dated 12.2.2018, (iii) the Dharani Sugars judgement had struck down only the Reserve Bank of India Circular dated 1.2.2018, (iv) the Reserve Bank of India Letter dated 28.8.2017 was issued pursuant to the authorisation and (v) the Reserve Bank of India Letter dated 28.8.2017 lists out the specific defaults, the Respondent being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. Furthermore, the IA No.21 of 2019 in CP(IB) No.24 of 2018 filed before the Tribunal(Cuttack Bench) in April 2019 seeking dismissal of the said application filed by the Appellant under Section 7 of the Insolvency Bankruptcy Code was allowed on 25.6.2019 and CP(IB) No.24 of 2018 was dismissed (being the original application filed by the Appellant under Section 7 of the Insolvency Bankruptcy Code). 10. Being aware that the pending Civil Appeal before the Hon ble Supreme Court had already become an infructuous one, the Petitioner/Appellant/Bank projected IA No.96019 of 2019. After lapse of 2 days, the Petitioner/Appellant had applied for a certified copy of the order dated 25.6.2019 on 28.6.2019. The copy of the same was received by the Petitioner/Appellant on 3.7.2019 which is evident from the Interim Application IA No.96019 of 2019 in Civil Appeal No.3169 of 2019 which was confirmed and filed by the Appellant on 4.7.2019. 11. When the IA No.96019 of 2019 was taken up for the first time, the Petitioner/Appellant/Bank without pressing the said application or advancing any arguments whatsoever sought to withdraw the said Civil Appeal itself (the said Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Application for condoning the delay by exclusion of time spent in the Review Proceedings . Application for condonation of delay is filed based on bonafide results and keeping in public interest, due to the large exposure of various banks to the Respondent including the Appellant . 19. The prescription of time mentioned in Section 61(2) of the Insolvency Bankruptcy Code does not exclude the Application of Section 14 of the Limitation Act, 1963. This Tribunal has the power to exclude time spent in Civil Proceedings pursued diligently and in good faith by the Appellant/Bank before the Hon ble Supreme Court and the National Company Law Tribunal based on the broad principles of Section 14 of the Limitation Act, 1963. In fact, the time spent before the Court of Law or the Tribunal can be excluded if the same turned out to be an abortive proceedings for the purpose of filing an Appeal before any Tribunal in respect of Appeal(s) . 20. In all, 223 days had expired from the date after the impugned order dated 25.6.2019, till the filing of the present appeal on 4.2.2020. If the period of 30 days as available under Section 61(2) of the Code is deducted fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal under section 41(2) before the Deputy Commissioner of Labour(Appeals) till it was dismissed will, therefore, have to be excluded for computing the period of limitation for filing the suit in question. If the entire period is excluded, the suit is not disputed, would be within time. (ii) In the decision of M.P.Steel Corporation V. Commissioner of Central Excise (2015)7 Supreme Court Cases at P.58 at Sp.Pg.59, wherein it is observed that so long as the plaintiff or applicant is bona fide pursuing a legal remedy which turns out to be abortive, the time beginning from the date of cause of action of an appellate or revisional proceeding is also to be excluded if such appellate/revisional proceeding is from an order in an original proceeding which turns out to be abortive . (iii) Consolidated Engineering Enterprises V. Principal Secretary, Irrigation Department (2008) 7 Supreme Court Cases 169 at Sp.pg.173, it is observed as under : There is fundamental distinction between discretion to be exercised under Section 5 of the limitation Act and exclusion of time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) J.Kumaradasan Nair V IRIC Sohan (2009)12 Supreme Court Cases at Page 175 at Sp.Pg.176 and 177, where it is observed as under: only because a mistake has been committed by or on behalf of the appellants in approaching the appropriate forum for ventilating their grievances, the same would not mean that Section 14(2) of the Limitation Act, which is otherwise available, should not be taken into consideration at all.(para 15) The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake. The provisions of Sections 5 and 14 of the Limitation Act are alike should, thus, be applied in a broad-based manner. When sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of Section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature. (Para 16) There cannot furthermore be any doubt whatsoever that having regard to the definition of suit as contained in Section 2(l) of the Limitation Act, a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent that condonation is of delay beyond 30 days). There is no reason to exclude the proviso to Section 20(3) in dealing with an appeal under the SARFAESI Act. Taking such a view will be nullifying Section 18(2) of the SARFAESI Act. (Paras 9,10,14 and 15) Section 29(2) of the Limitation Act, 1963 has no absolute application, as the statute in question impliedly excludes applicability of provisions of the limitation Act to the extent a different scheme is adopted. If no provision of the Limitation Act was expressly adopted, it may have been possible to hold that by virtue of Section 29(2) power of condonation of delay was available. It is well settled that exclusion of power of condonation of delay can be implied. However, in the present case, the power of condonation of delay has been made expressly applicable by virtue of Section 18(2) of the SARFAESI Act read with the proviso to Section 20(3) of the RDDB Act having been expressly incorporated under the special statutes in question. Section 29(2) stands impliedly excluded. Even though Section 5 of the Limitation Act may be implied inapplicable, principle of Section 14 of the Limitation Act can be held to be applicable even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. The true purport of the words other cause of a like nature is that the same must relate to the subject-matter of the issue. (Para 20) It is not in dispute that the writ remedy was resorted to by the plaintiff. A part of the writ petition was admitted. It has not been held that the writ petition was not maintainable. It was not dismissed as the threshold. In view of the fact that a part of the writ petition was admitted for hearing, there cannot be ay doubt whatsoever that the same was maintainable. The appellant-plaintiff was, therefore, pursuing the said remedy bonafide and in good faith. (Para 19) Further, it is not correct to contend that the writ petition filed by the appellant had nothing to do with the escalation clause. In the writ petition, the entire contention of the appellant revolved around the arbitrary refusal on the part of the respondents to pay the price of the steel in terms of the escalation clause. Even the amount claimed in the writ petition was the same for which the suit was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act shall be excluded. (Para 25) Therefore it is held that Section 14 of the Limitation Act, 1963 is applicable in the Arbitration and conciliation Act, 1996. (Para 26). 23. Respondent s Decisions: (a) The Learned Counsel for the Respondent relies on the decision of Hon ble Supreme Court in Kalabharathi Advertising V Hemant Vimalnath Narichania (2010)9 SCC 437 at Sp.Pg.439, wherein it is observed as under : Paras 15 to 19: no litigant can derive any benefit from the pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrong by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to transfer the ownership of the lands to the tenants on April, 1,1957 except in case where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this Section that the legislature did not intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957. If an application for possession made under Section 29 read with Section 14 after April 1, 1957, is decided in favour of the landlord before the application made by him prior to April 1, 1957 is disposed of, it will effect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was not intended by the legislature. The fact that the legislature has provided that only an application made prior to April 1, 1957 should affect the right of the tenant to become the purchaser of the land on April 1, 1957 should affect the right of the tenant to become the purchaser of the land on April 1, 1957 clearly indicates that the legislative contemplated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 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 Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. It is not clear from the record whether the appellant had applied for a certified copy of obtained one through e-mail, but this much is evident that the appellant did obtain/receive a copy of order dated 17.5.2007 If that was not so, the appellant could not have filed an appeal under Section 125 of the Electricity Act. The preparation of appeal, which bears the date 7.9.2007 is a clinching evidence of the fact that the appellant had not only become aware of the order of the Tribunal, but had obtained a copy thereof. However, instead of filing of the appeal within 60 days from the date of receipt of the letter dated 7.6.2007 sent by the Registry of the Tribunal or the communication sent by Respondent 5, the appellant chose to file the appeal only on 24.12.2007 and that too despite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had observed as follows: We find ourselves unable to agree with the views expressed by this Court in Eastern Coalfields Limited (supra). In our view, once the High Court has refused to entertain the review petition and the same was dismissed confirming the main order, there is no question of any merger and the aggrieved person has to challenge the main order and not the order dismissing the review petition because on the dismissal of the review petition the principle of merger does not apply. In this connection reference may be made to the Judgement of this Court in Manohar S/o Shankar Nale and others v Jaipalsing S/o Shivlalsing Rajput and others (2008) 1 SCC 520 wherein this Court has taken the view that once the review petition is dismissed the doctrine of merger will have no application whatsoever. This Court in DSR Steel (Private Limited v.State of Rajasthan and others (2012) 6 SCC 782 also examined the various situations which might arise in relation to the orders passed in review petitions. Reference to paragraphs 25, 25.1, 25.2 and 25.3 is made, which are extracted below for ready reference: 25. Different situations may arise in relation to review petitions file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017, wherein at Para 5, it is observed as under : Further, as the order dated 2nd May, 2017 is not under challenge in this appeal this Appellate Tribunal cannot express any opinion with regard to the order of admission dated 2nd May, 2017. If the said order dated 2nd May, 2017 is allowed to be challenged, the appeal will be barred by limitation under sub-section (2) of Section 61 of the I B Code . h. The Learned Counsel for the Respondent cites the decision of Ram Bhawan Singh and Others v. Jagdish and Others, (1990) 4 SCC @ 309, wherein at Page 309 and at Spl.Pg.311 and 312, at Para 4 and 7 , it is observed as under: Para 4. The appellants did not challenge the order of the High Court dated October 3, 1972 by taking any further steps of filing any special leave petition before this Court. On the contrary, on some mistaken and totally wrong advice of some counsel the appellants again initiated fresh proceedings by moving an application on July 6, 1973 before the Settlement Officer consolidation. That application was rejected on October 30,1974. A revision was filed against that order before the Deputy Director of Consolidation which was also rejected by order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in good faith. The subsequent proceedings are also not legal or valid. When the decision of the High Court in the writ petition was one quashing the orders of the appellate and the revisional authorities, the party could not proceed on the basis that the matter was resorted to the lower authorities for fresh decision. We are therefore not satisfied that there is any merit in the ground urged by the appellants for getting over the bar of limitation. The appeals are liable to be dismissed as time barred. i. The Learned Counsel refers to the decision of Hon ble High Court of Jammu Kashmir in H.S.Bali v.Trilochan Dutt Ors. Reported in (1988)KashL at Page 629, wherein at Para 3, it is observed as under: This appeal is liable to be dismissed for being barred by time as the same was admittedly filed after the period prescribed for filing such appeals. The petitioner has however vide CMP No.295/88 sought the condonation of delay mainly on the grounds that as the order impugned was challenged in a review petition before the learned Single Judge the review petition remained pending till 551988, the period from 1631988, till 551988 having been spent allegedly bonafidely and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er civil proceeding in good faith within the meaning of S.14. Further, defect of jurisdiction in S.14 means a defect in the particular Court where the former proceedings were instituted and not an inability shared by that Court in common with all other Courts to entertain the proceedings. In other words, the section applies if the proceedings are capable of being sustained in the sense of being granted in conformity with law by some Court and does not make an allowance for time spent in prosecuting a proceeding which the law does not permit any Court whatever to grant. Defect f jurisdiction does not cover such mistake as the prosecution of an appeal which does not lie at all in any Court. Proceedings to fall under S.14 must be such as one recognised by law as legal in their initiation though the party earned the proceeding to a wrong Court. See Shaodhari Ram v Gupteswar Pathak AIR 1924 Pat 716 (H): and Rustomji Volume 1 Page 245 , commentaries on S.14 under the heading Defect of Jurisdiction. Discussions : 24. The Applicant/Appellant in IA No.774 of 2020 in CP(AT)(Ins)294 of 2020 had averred that on 4.7.2019, the Applicant/Appellant being dissatisfied with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course with costs. 29. One cannot ignore a prime fact that the term sufficient cause implies no negligence, nor inaction nor want of bonafides on the part of the litigant. In fact, in excluding the time, the period starting from the institution of former proceeding till the end of the said proceeding, would be calculated. If a litigant was bonafide prosecuting his rights in a Court / Tribunal due to wrong advise, the limitation shall remain in limbo , which is the underlying Principle of Section 14 of the Limitation Act, 1963. 30. The essence of sufficient cause is whether it was an act of prudence or reasonable man on the part of person filing an Appeal . It is to be taken note of that whether the Appellant had acted with reasonable diligence in prosecuting his Appeal . 31. It is to be remembered that if an individual permits limitation to expire and plead sufficient cause for not filing an Appeal earlier, he ought to establish that because of some event or circumstances arising before the limitation expired, it was not possible for him to prefer an Appeal within time. It cannot be gainsaid that if sufficient cause is shown, the Court of Law / Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s satisfied that there was sufficient cause in not filing an Appeal , but such period had not exceeded 15 days, this Tribunal bearing in mind that an axiomatic principle in law that if a party/litigant was involved in a Bonafide Litigious Activity , then, the said time spent in such litigation can be excluded, because of the fact that the said party had acted with reasonable diligence in prosecuting his Appeal . Furthermore, this Tribunal opines that the term sufficient cause in Law does not mean only those circumstances which the Law expressly recognised for extending the period for filing an Appeal, but also such situation/circumstances which are not expressly approved/recognised but which may appear to the Tribunal to be reasonable, considering the totality of the circumstances of a given case. 35. As far as the present case is concerned, the action of the Petitioner/Appellant in moving the Hon ble Supreme Court of India in Civil Appeal No.3169 of 2019 after the Impugned Order dated 25.6.2019 passed by the Adjudicating Authority , instead of preferring an Appeal before this Tribunal and later filing of the Review Proceeding before the Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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