TaxTMI 
TaxTMI 
2009 (9) TMI 575
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....ion of delay in filing the appeal was lodged on 4-8-2009. 3. An affidavit in reply to the said Application is filed by the respondent No. 3 wherein it is contended by respondent No. 3 that in view of the proviso to section 10F, the Applicant is not entitled to invoke section 5 of the Limitation Act for preferring an appeal beyond 120 days. 4. Mr. Shailesh Shah, learned Advocate appearing for the applicant has submitted that section 29(2) of the Limitation Act, 1963 provides that :- "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 only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." [Emphasis supplied] Mr. Shah has submitted that as provided in section 29, section 5 of the Limitation Act, 1963 shall apply to an ....
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....r section 34 of the Arbitration and Conciliation Act, 1996, the same cannot be said about the words "not exceeding 60 days" used in the proviso to section 10F of the Companies Act, 1956 and therefore, section 5 of the Limitation Act, 1963 would be applicable to an appeal filed under section 10F of the Companies Act, 1956. 6. Mr. Shah has in support of his above submission relied on a decision of this Court in Echjay Industries (P.) Ltd. In re [2004] 54 SCL 43 , which at the outset I would like to clarify, will not be of any assistance to Mr. Shah, because the applicability of section 5 of the Limitation Act, 1963 to section 10F of the Companies Act, 1956 was not in issue before this Court in the said decision. 7. Mr. Ravi Kadam, the learned Senior Advocate, appearing for respondent No. 3 in support of his contention that section 5 of the Limitation Act, 1963 would not be applicable to an appeal filed under section 10F of the Companies Act, 1956, has relied on a decision of the Hon'ble Supreme Court of India, in the case of Union of India v. Popular Construction Co. [2002] 37 SCL 622 , wherein the Hon'ble Supreme Court apart from holding that the words "but not thereafter" use....
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.... Act are also not applicable to an application challenging an award under section 34 of the Arbitration and Conciliation Act, 1996. 10. Mr. Kadam has further relied on the decision of the Punjab and Haryana High Court in the case of Pawan Goel v. KMG Milk Food Ltd. [2008] 142 Comp. Cas. 441 ^1, wherein the learned Single Judge of the Punjab and Haryana High Court has inter alia held that the proviso to section 10F of the Companies Act, 1956 has created an absolute bar for extension of period of limitation beyond sixty days apart from the period of limitation of sixty days prescribed under section 10F of the Companies Act, 1956. The expression "not exceeding" does not permit any further extension. The true import, purport and construction of the proviso is to restrict the total period of limitation of 120 days i.e., sixty days principal and sixty days by extension subject to existence of sufficient cause in a given case. Mr. Kadam has, therefore, submitted that section 5 of the Limitation Act, 1963 is not applicable to section 10F of the Companies Act, 1956 and therefore, the admitted delay of 105 days, after exhausting the period of 120 days provided under section 10F of the Com....
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....and any condonation of delay would render a specific provision providing for limitation rather otiose. The appeal was, therefore, dismissed by the Hon'ble Supreme Court. 13. Mr. Chagla has submitted that in the instant case, the Appellant was required to file an Appeal within sixty days from the receipt of the Company Law Board order, which period could have been extended by a further period of sixty days upon the Appellant satisfying the Court that she was prevented by sufficient cause from pursuing the Appeal within the prescribed time of sixty days. The Legislature by using the words "not exceeding sixty days." has expressly excluded the applicability of section 5 of the Limitation Act, 1963 and any condonation of delay would render the proviso to section 10F providing for limitation rather otiose. 14. I have considered, the aforesaid submissions advanced on behalf of the learned Advocates appearing for the applicant as well as respondents, and the decisions of the Hon'ble Apex Court and High Courts cited by them. Under section 34(3) of the Arbitration and Conciliation Act, 1996, an application for setting aside an award is required to be made within 3 months from the date....
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....ng the time-limit of only 60 days, in addition to the initial period of 60 days allowed under section 10F of the Companies Act, 1956, to enable a party to file an appeal. The proviso clearly shows that the power vested in the Court to condone delay on sufficient cause being shown is directory and subject to the discretion vested in the Court. However, the maximum period to the extent of which such delay is capable of being condoned is mandatorily prescribed and not open to exercise of any discretion. The words "not exceeding" cannot be given any other meaning except "not more than" or "not beyond" or "not thereafter". Therefore, in my view, the words "not exceeding 60 days" would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act, 1963 and would therefore bar the application of section 5 of the Limitation Act to section 10F of the Companies Act, 1956. To hold that the Court could entertain an application to set aside the decision/order passed by the Company Law Board beyond the extended period under the proviso, to section 10F of the Companies Act, 1956 would render the phrase "not exceeding 60 days" wholly otiose. 18. As held by the Supreme....
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....also the strong feeling, expressed almost without any reservation, by all the organisations and individuals who had submitted their memorandum to the committee or had appeared before it that there is a definite need for a quasi-judicial Tribunal, independent of the executive authority of the Central Government, which should not only ensure that the Act is administered in a manner which gives the affected party a right to be heard but also see that the decisions are taken uninfluenced by executive considerations. In the circumstances, what needs to be ensured is an in-built system which combines the application of judicial mind with speed and administrative efficiency, first, in respect of those matters which are at present with the Central Government though delegated to the Company Law Board and, secondly, in respect of such matters as are statutorily with the Company Law Board. We, therefore, feel that appropriate solution would lie in statutorily constituting an independent quasi-judicial Company Law Board broadly on the lines of the Income-tax Appellate Tribunal as provided in section 252 of the Income-tax Act, 1961 with Benches permanently located at different Regions, inclu....