TMI Blog2004 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 can be availed of for the purpose of extending the period beyond 30 days of expiry of limitation as provided under Section 35 of the Central Excise Act. In support of his submission, the learned counsel for the petitioner relied upon the judgments of the Supreme Court in Mangu Ram v. Municipal Corporation of Delhi, AIR 1976 S.C. 105, Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5 and P. Sarathy v. State Bank of India, (2000) 5 SCC 355. 3.Mr. R.V. Desai, the learned senior counsel for the revenue, on the other hand, submitted that the Commissioner of Central Excise (Appeals) is not empowered to condone the delay in excess of period prescribed under Section 35 of Central Excise Act and the provisions of Limitation Act, 1963 are not applicable. He relied upon the judgments of the Supreme Court in Sakuru v. Tanaji, 1985 (22) E.L.T. 327, Prakash S. Jain v. Marie Fernandes, (2003) 8 SCC 431 and Union of India v. Popular Construction Co., (2001) 8 SCC 470. He also relied upon the judgment of Allahabad High Court in the case of E. Sefton Co. Pvt. Ltd. v. Government of India, 1993 (63) E.L.T. 626. 4.We reflected over the submissions advanced before us. 5.Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot preferring the appeal or making the application within such period. Explanation. - The fact that 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 this section." 8.In Mangu Ram, the Apex Court considered the question whether Section 5 of the Limitation Act, 1963 was applicable to the application for special leave made under Section 417(3) of Criminal Procedure Code. The Supreme Court observed thus - "7. There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1908 Section 29, sub-section (2), clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of 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, sub-section (2) of the Limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-section (4) of Section 417 since the Municipal Corporation of Delhi had sufficient 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." 9.In Mukri Gopalan, the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Labour (Appeals), Madras, which is the authority constituted under the Tamil Nadu Shops and Establishments Act, 1947 has the jurisdiction to adjudicate upon an order by which the services of an employee are terminated. He has the jurisdiction to decide whether the order of dismissal, passed by the employer, was valid or it was passed in violation of any statutory rule or principles of natural justice. Under Section 41(3), the order passed by him is binding on the employer as also on the employee. Thus, the Deputy Commissioner of Labour (Appeals) may not be a "civil court" within the meaning of the Code of Civil Procedure but it is definitely a "court". 10. This appeal was dismissed on 1-9-1987 on the ground that the provisions of the Tamil Nadu Shops and Establishments Act, 1947 were not applicable to nationalised banks as held by the Madras High Court in the judgment since reported in C V. Raman. This judgment was rendered during the pendency of the appeal before the Deputy Commissioner of Labour (Appeals), Madras. 11. Sub-section (1) of Section 14, Limitation Act, provides as under : "14. (1) In computing the period of limitation for any suit the time during which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaiah's case is perfectly correct and sound. It is well settled the decisions of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and others, (1978) 1 S.C.R. 51; Nityananda M. Joshi and others v. Life Insurance Corporation of India and ors., (1970) 1 S.C.R. 396 and Sushila Devi v. Ramanandan Prasad and others, (1976) 2 S.C.R. 845 that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under Section 90 of the Act not being a court, the Limitation Act, as such, had no applicability to the proceedings before him. But, even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stern Railways, (1995) 2 SCC 493 and France B. Martins v. Mafalda Maria Teresa Rodrigues, AIR 1999 SC 3243 and held that the competent authority cannot be held to be court for any purpose much less for availing of or exercising the powers under the Limitation Act, 1963. 13.The Supreme Court in the case of Popular Construction Co. considered the question whether the provisions of Section 5 of Limitation Act were applicable to an application challenging the award under Section 34 of the Arbitration and Conciliation Act, 1996 and held thus- "5. The issue will have to be resolved with reference to the language used in Section 29(2) of the Limitation Act, 1963 and Section 34 of the 1996 Act. Section 29(2) provides that - "29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial law exclude their operation." (SCC p. 146, para 17) 16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub-section (2) and sub-section (3), sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application "in accordance with" that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that - "Where the time for making an application to set aside the arbitral award under Section 34 has expired. the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court." This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naji, reported in A.I.R. 1985 S.C. 1279 it has been clearly held that the provisions of the Limitation Act, 1963 apply only to proceeding in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities notwithstanding the fact that such bodies or authorities may be vested with certain specified power conferred on courts. 11. It is, therefore, clear that even Section 29(2) of the Limitation Act, 1963 cannot make Section 5 of the aforesaid Act applicable to the proceedings under the Central Excises and Salt Act, 1944 and, therefore, the petitioner is not entitled to the benefits of the said provision." 15.The legal position that emerges from the various pronouncements referred to above is that the provisions of Limitation Act, 1963 apply only to 'courts'. Such courts may not be civil courts. These courts may not necessarily be constituted under the Code of Civil Procedure or the Code of Criminal Procedure. The forum that functions as a court or has trappings of the court would be a court for the purposes of applicability of the Limitation Act, 1963. The jurisdiction to entertain proceedings, appeals or revis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
