TaxTMI 
TaxTMI 
2019 (1) TMI 132
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....nstitutions Act, 1993 (hereinafter referred to as "the 1993 Act") for the recovery of Rs. 28,15,122/- along with pendente lite, future interest, costs and expenses. The petitioner did not appear and the Tribunal vide order dated 9.8.2017 (Annexure P-2) proceeded him against exparte and adjourned the case for 16.10.2017. Thereafter, the petitioner moved an application along with affidavit dated 16.10.2017 (Annexure P-3) before the Tribunal for setting aside the exparte proceedings. Respondent No.2 filed reply, Annexure P-4, to the said application. The Tribunal vide order dated 15.3.2018 (Annexure P-5) dismissed the said application. Hence, the present writ petition. 3. We have heard learned counsel for the parties and perused the paper-book with their assistance. 4. The issue that arises for consideration in this petition is whether the Tribunal has the power to condone the delay under Section 5 of the Limitation Act, 1963 (for brevity "the 1963 Act") in respect of the proceedings under Section 19 of the 1993 Act? 5. Before adjudicating the controversy involved, it would be advantageous to reproduce the relevant statutory provisions of the 1993 Act and the Limitation Act, 1963 (....
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....as to why the relief prayed for should not be granted. (5) The defendant shall, at or before the first hearing or within such time as the Tribunal may permit, present a written statement of his defence. (6) Where the defendant claims to set-off against the applicant's demand any ascertained sum of money legally recoverable by him from such applicant, the defendant may, at the first hearing of the application, but not afterwards unless permitted by the Tribunal, present a written statement containing the particulars of the debt sought to be set-off. (7) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Tribunal to pass a final order in respect both of the original claim and of the set-off. (8) A defendant in an application may, in addition to his right of pleading a set-off under sub-section (6), set up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the time limited for delivering his defence has expir....
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.... may order the attachment of the whole or such portion of the properties claimed by the applicant as the properties secured in his favour or otherwise owned by the defendant as appears sufficient to satisfy any certificate for the recovery of debt. (14) The applicant shall, unless the Tribunal otherwise directs, specify the property required to be attached and the estimated value thereof. (15) The Tribunal may also in the order direct the conditional attachment of the whole or any portion of the property specified under sub-section (14). (16) If an order of attachment is made without complying with the provisions of sub-section (13), such attachment shall be void. (17) In the case of disobedience of an order made by the Tribunal under sub-sections (12), (13) and (18) or breach of any of the terms on which the order was made, the Tribunal may order the properties of the person guilty of such disobedience or breach to be attached an may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Tribunal directs his release. (18) Where it appears to the Tribunal to be just and convenient, the Tribunal may,....
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.... the Tribunal which has issued it. (24) The application made to the Tribunal under subsection (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application finally within one hundred and eighty days from the date of receipt of the application. (25). The Tribunal may made such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. 20 and 21. XX XX XX 22. Procedure and Powers of the Tribunal and the Appellate Tribunal- (1) The Tribunal and the Appellate Tribunal shall not be bound the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. XX &nbs....
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....escribed under the special law shall prevail and to that extent the provisions of the 1963 Act shall stand excluded. If none of them are excluded, then in that situation all of them would be applicable. Examining Sections 5 and 29(2) of the 1963 Act, 1963, it was recorded as under:- "5. Examining the first issue, Sections 5 and 29(2) of 1963 Act would be germane for the purpose of deciding the controversy which provide as follows:- "5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not 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. 29. Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). (....
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....g but exclusionary. The Supreme Court in Union of India v. Popular Construction Company, AIR 2001 SC 4010 while analyzing Section 29(2) of the 1963 Act in view of its earlier decision in Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 had observed as under:- "Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. "Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law excluded their operation." 8. In the present case, the Tribunal while relying upon the judgment of the Apex Court in Civil Appeal No. 16962 of 2017, International Assets Reconstruction Company v. The Official Liquidatory of Aldrich Pharmaceuticals Ltd., dismissed the application for setting aside the exparte order dated 9.8.2017 on the ground that the Tribunal had no jurisdiction to condone the delay under Section 5 of the 1963 Act as the application was filed after the expiry of tw....