TMI Blog2023 (6) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... le considering the limitation for filing an Appeal under Section 61 of the Code - The scope and ambit of Section 14 of the Limitation Act have been considered and explained by Hon ble Supreme Court in several judgements. In Kalpraj Dharamshi case itself the Hon ble Supreme Court has noted the conditions that are required to be fulfilled for invoking the provisions. In Kalpraj Dharamshi case the Hon ble Supreme Court extended the benefit of Section 14 of the Limitation Act in the Appeal filed under Section 61 of the Code before this Appellate Tribunal. The expression used in Section 14 are defect of jurisdiction or other cause of a like nature . The expression other cause of a like nature has been explained and examined in large number of cases by Hon ble Supreme Court - reference made to the Judgment of the Hon ble Supreme Court in India Electric Works Ltd. vs. James Mantosh Anr. [ 1970 (9) TMI 105 - SUPREME COURT ], wherein the Hon ble Supreme Court had occasion to consider the ambit and scope of Section 14 of the Limitation Act and both the expressions, from defect of jurisdiction or other cause of like nature came for consideration. The Hon ble Supreme Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ora, Mr. Siddhant Buxy, Mr. Daushit Dave, Mr. Krishna Sumanth, Ms. Varsha HimatiSingka, Advocates for R1 Mr. Anish Jaipuria, Ms. Aishwarya Singh, Advocate for Intervener-CBI Advocate Chandan Kumar, for IRP ORDER ASHOK BHUSHAN, J : 1. This is an Application filed by the Appellant praying for condonation of delay in filing the Appeal. The Appellant in the Application prays for exclusion of the period from 26.12.2022 to 01.05.2023 during which the Appellant was prosecuting the Writ Petition No. CWP-30348-2022 before Punjab and Haryana High Court. 2. Notices were issued in the Delay Condonation Application to which Reply has also been filed by Respondent No.1 to which Rejoinder on behalf of Appellant has also been filed. 3. Brief background facts necessary to be noted for deciding this Application are:- a. The Appellant is member of the Suspended Board of Directors of Supreme Vasai Bhiwandi Tollways Pvt. Ltd.-Corporate Debtor. An Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as The Code ) being CP (IB) No. 442/CHD/HRY/2019 was filed by the Respondent No. 1 against the Corporate Debtor before National Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till 26th May, 2023. It was made clear by the Hon ble High Court that in case publication has already been done, the order shall not come into force. 4. The Application (I.A. No. 2315 of 2023) was taken by this Appellate Tribunal on 25th May, 2023 on which date this Appellate Tribunal issued notice on the Delay Condonation Application and further directed protection by order granted by the High Court to continue till the next date. In pursuance of the Notice, Reply was filed by Respondent No. 1 to which time for Rejoinder was taken by the Appellant on 31st May, 2023. 5. We have heard Mr. Abhijeet Sinha, Learned Counsel for the Appellant, Mr. Krishnendu Dutta, Learned Sr. Counsel for the Respondent No. 1 and Mr. Chandan Kumar, Learned Counsel for the IRP. 6. The Only question which has arisen for consideration in this Appeal is as to whether the Applicant is entitled for the benefit of Section 14 of the Limitation Act for purposes of the limitation for filing this Appeal under Section 61 of the Code? 7. The Law is well settled that even though Section 14 of the Limitation Act is not strictly applicable in the Appeal filed under Section 61 of the Code but the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f attorney on behalf of Appellant in favour of Mr. Satish Kumar Tiwari with regard to Supreme Vasai Bhiwandi Tollways Pvt. Ltd. It is submitted that power of attorney annexed along with the Appeal at Page 645 Volume-IV of the Appeal is a power of attorney on behalf of Appellant in Supreme Ahmednagar Karmala Tembhurni Tollways Private Limited hence Appeal and Application is fully incompetent. Mr. Krishnendu Dutta, Learned Sr. Counsel opposing Section 5 Application of the Limitation Act further contends that benefit of Section 14 is not available to the Appellant since the earlier proceeding that is writ proceeding has not been prosecuted in good faith and due diligence. The benefit under Section 14 of the Limitation Act can be claimed only when the earlier proceeding was being prosecuted in good faith in a court suffering from defect of jurisdiction or other cause of like nature and is unable to entertain. It is submitted that writ proceedings in the Hon ble High Court under Article 226 and 227 of the Constitution of India can not be held to be proceeding suffering from any defect of jurisdiction. It is submitted that writ proceeding which was filed on the basis that there is no vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive remedy for filing an Appeal. KIAL thereafter filed an Appeal before NCLAT on 18.02.2020 when the Appeal was taken, objection was raised that it is barred by time which objection was overruled and NCLAT by subsequent order allowed the Appeal and set aside the Order of NCLT on 05th August, 2020. Four Appeals were filed in the Supreme Court. One of the question which came for consideration, has been noted in paragraph 49.1 is that whether the Appeals filed by KIAL before NCLAT were within limitation. In the above reference, Hon ble Supreme Court had considered the several earlier judgments on Section 14 of the Limitation Act. Hon ble Supreme Court in paragraph 64 observed that the provisions contained in Section 5 and 14 are meant for grant of relief, where a person has committed some mistake. In paragraph 64 also it was held that even though section 14 is not per se applicable, the same would not mean that principles akin thereto would not be applicable. In paragraph 64 and 65 of the Judgment, following has been observed: 64. Thus, this Court relying on the earlier judgments in the cases of Bhudan Singh and another vs. Nabi Bux and another, J. Kumaradasan Nair and another v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. 14. In paragraph 65, Hon ble Supreme Court has also held that when a litigant bona fide under a mistake litigates before a wrong forum, he would be entitled for exclusion of the period, during which he was bona fide prosecuting such a wrong remedy. The Hon ble Supreme Court in Kalpraj Dharamshi adverting to the said facts and present case laid down following in Paragraph 68: 68. Coming to the facts of the present case, immediately after NCLT pronounced its judgment on 28.11.2019 and even before the certified copy was made available on 18.12.2019, KIAL had filed writ petition before the Division Bench of the Bombay High Court on 11.12.2019 on the principal ground, that the procedure followed by NCLT was in breach of principles of natural justice. Such a ground could be legitimately pursued before a writ court. In that sense, it was not a proceeding before a wrong court, as such. Perusal of the judgment and order dated 28.1.2020, passed by the Division Bench of the Bombay High Court, which dismissed the writ petition on the ground of availability of alternate and equally efficacious remedy would reveal, that the said writ petition was hotly contested between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of extraordinary jurisdiction under Article 226 despite availability of an alternate remedy. ........... 100. We therefore have no hesitation to hold, that KIAL was entitled to extension of the period during which it was bona fide prosecuting a remedy before the High Court with due diligence. 17. In Kalpraj Dharamshi case the Hon ble Supreme Court extended the benefit of Section 14 of the Limitation Act in the Appeal filed under Section 61 of the Code before this Appellate Tribunal. 18. Mr. Krishnendu Dutta, Learned Sr. Counsel for the Respondent has emphasised that writ petition filed by the Appellant cannot be treated to be bona fide proceeding since the Appellant could have withdrawn the Writ Petition after 2nd January, 2023 and approach this Tribunal. 19. A copy of the writ petition which was filed before the Hon ble High Court of Punjab and Haryana has been brought on record by which Appellant in Volume 4 of the Appeal in the writ petition has pleaded following in paragraph 12 to 14: 12. That since the National Company Law Appellate Tribunal, New Delhi Bench is not functional and is not hearing any matters till 01.01.2023, it is impossible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission of Respondent that Appellant ought to have withdrawn the Writ Petition and filed the Appeal, suffice it to say that when Application was filed by Respondent No. 1 for dismissing the Writ Petition, the Hon ble High Court allowed time to the Appellant to file a reply and ultimately on 1st May, 2023 writ petition was disposed of giving liberty to the Appellant to file an Appeal. The Hon ble High Court in paragraph 5 of the Judgement dated 01st may, 2023 has granted liberty to the Appellant to avail statutory remedy before the Appellate Tribunal. The Hon ble High Court thus having granted liberty to file the Appeal, we are not persuaded to accept the submission of Learned Sr. Counsel for the Respondent that Proceedings in the Writ Petition were not prosecuted in good faith. 22. Now next submission which has been passed by Learned Sr. Counsel for the Respondent is that the Writ Petition can not be said to be suffering from defect of jurisdiction or other cause of like nature. Cause of like nature has been considered by the Hon ble Supreme Court in several cases. Learned Counsel for the Respondent has referred to 1977 1 SCC 791 Gurdit Singh Ors. Vs. Munsha Singh Ors. whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supposed hardship is confined to an application under article 226 of the Constitution. To accept this suggestion would be to extend the policy underlying the section to cases not contemplated by it. The ground suggested cannot be regarded as a cause of a like nature . 24. It is true that Law Commission opined in its report as extracted above that further explanation to section 14 should not be added extending the scope of the expression other cause of a like nature so as to bring within its ambit cases where the Hon ble High Court exercising its jurisdiction under article 226 of the Constitution rejects a petition in the exercise of its discretion on the ground that the applicant has an alternative remedy by way of suit. 25. The said recommendation of the Law Commission were given in the year 1956, despite the above recommendation of Law Commission given in 1956, Hon ble Supreme Court had occasion to consider several cases where benefit of Section 14 of the Limitation Act was claimed on the ground of prosecuting a proceeding before the Hon ble High Court under Article 226. Some of the cases have been noticed in the Judgement of Kalpraj Dharamshi with regard to proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, or other cause of a like nature, is unable to entertain it. (2) .. Explanation I . .. Explanation II . Explanation III. For the purpose of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. The High Court having found that the present claim of the plaintiffs was also included in the previous suit the condition that the previous proceeding should be founded upon the same cause of action must be held to have been satisfied. The High Court has further held that the previous suit had been prosecuted in good faith and with due diligence. In order to attract the applicability of Section 14(1), therefore, all that has to be determined is whether the court in which the previous suit was filed was unable to entertain the claim relating to future mesne profits from defect of jurisdiction or other cause of a like nature . It is common ground and indeed cannot be argued nor has any attempt been made to urge such a contention before us that the court trying the previous suit was unable to entertain it from defect of jurisdiction. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words or other cause, of a like nature must be construed liberally. Some clue is furnished with regard to the intention of the legislature by the Explanation III in Section 14(2). Before the enactment of the Act in 1908 there was a conflict amongst the High Courts on the question whether misjoinder and non-joinder were defects which were covered by the words or other cause of a like nature . It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking misjoinder or non- joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it. 28. Same principles were again reiterated by Hon ble Supreme Court in (2004) 3 SCC 458, Union of India Ors. vs. West Coast Paper Mills Ltd. Anr. (III) , where in Para 14 following has been laid down: 14. In the submission of Mr. Malhotra, placing reliance on The Commissioner of Sales Tax, U.P., Lucknow v. M/s Parson Tools and Plants, Kanpur, [(1975) 4 SCC 22], to attract the applicability of Section 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 14 cannot be held to be denied to the Appellant. 30. Now coming to the objection which was raised by the Respondent regarding power of attorney annexed in the Appeal. 31. In the Rejoinder Affidavit, Appellant has submitted that by mistake power of attorney given by the Appellant with regard to another company was annexed. In the Rejoinder, the Applicant has brought on record power of attorney dated 01st August, 2022 executed by the Appellant in favour of Shri Satishkumar Tiwari who has filed the Affidavit in support of Application under Section 5 as well as Rejoinder Affidavit. Shri Satishkumar Tiwari claims himself to be power of attorney of the Appeal and annexed the copy of the power of attorney dated 01st August, 2022 as Annexure-1 to the Rejoinder. Learned Sr. Counsel for the Respondent submits that said power of attorney was executed on stamp duty which is claimed purchased on 16th November, 2021 and power of attorney can not be validly executed. The fact of the matter is that power of attorney was executed on 01st August, 2022 which has been brought on record and we for the purposes of prosecuting this Appeal, are not persuaded to accept the submission of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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