TaxTMI 
TaxTMI 
2021 (3) TMI 631
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.... means of an 'Interlocutory Application' in Civil Appeal No.3169 of 2019, filed by the Appellant in February 2019, in regard to the connected proceedings. As a matter of fact, the said application was filed within 10 days from the first impugned order. 2. It is the stand of the Appellant/Bank that on 29.7.219, when the matter was taken up before the Hon'ble Supreme Court, the Hon'ble Supreme Court permitted the Appellant to withdraw the 'Appeal' with a liberty to approach the 'Adjudicating Authority' for 'Review' of the first impugned order dated 25.6.2019. 3. Besides this, pursuant to the liberty given by the Hon'ble Supreme Court, an Application' for '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....
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....ed Civil Appeal No.3169 of 2019 before the Hon'ble Supreme court on 23.2.2019 against the Interim Order dated 27.6.2018 which was passed by the Hon'ble High Court of Orissa in Writ Appeal No.237 of 2018. In fact, the Petitioner/Bank from February 2019 was aware that the proceedings in the Hon'ble Supreme Court were in relation to an order passed in Writ Appeal, then pending before the Hon'ble High Court of Orissa at Cuttack. 9. The judgement which was reserved on 29.6.2018 in Writ Petition was dismissed on 25.3.2019. The Civil Appeal before the Hon'ble Supreme Court' had become an infructuous one, in view of the dismissal of the original Writ Petition 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, th....
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....an 'Application' within 30 days before the 'Tribunal' and a further period of 15 days is provided only if , ' sufficient cause' is made out for preferring the 'Appeal' within the extended period. If the 'Application' for 'Condonation of Appeal' is allowed, then Section 61 of the Insolvency & Bankruptcy Code will become an 'otiose' one. 17. There is no 'Balance of Convenience' in favour of the 'Petitioner'/'Appellant' and that the 'Application is liable to be dismissed. Appellant's Rejoinder Pleas: 18. The order of the Hon'ble Supreme Court dated 29.7.2019 in 'Civil Appeal' is a material fact to be considered by this 'Tribunal' for adjudicating 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 ....
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....he instant case, we are of the opinion that the Deputy Commissioner of Labour (Appeals), which was an authority constituted under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 to hear and decide appeals, was a "court" within the meaning of Section 14 of the Limitation Act and the proceedings pending before him were civil proceedings. It is not disputed that the appellant could file an appeal before the Local Board of the Bank, which was purely a departmental appeal. In this view of the matter, the entire period of time from the date of institution of the departmental appeal as also the period from the date of institution of the 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 t....
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....a party who is guilty of negligence, lapse or inaction. However, there can be no hard-and-fast rule as to what amounts to good faith. It is a matter to be decided on the facts of each case. It will, in almost every case be more or less a question of degree. Mere filing of an application in wrong court would prima facie show want of good faith. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. In the light of these principles, the question will have to be considered whether the appellant had prosecuted the matter in other courts with due diligence and in good faith". (Para 31). (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....
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....46, wherein it is observed as under : "the period of limitation for filing an appeal under Section 18 of the SARFAESI Act is 30 days as against 45 days under Section 20 of the RDDB Act. To this extent, legislative intent may be deliberate. However, the absence of an express provision for condonation, when Section 18(2) expressly adopts and incorporates the provisions of the RDDB Act which contains provision for condonation of delay in filing of an appeal, cannot be read as excluding the power of condonation. The proviso to Section 20(3) which provides for condonation of delay (45 days under the RDDB Act) stands extended to disposal of appeal under the SARFAESI Act (to the 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 wa....
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.... made expressly applicable by virtue of Section 19(2) of the SARFAESI Act read with the proviso to Section 20(3) of the RDDB Act and to that extent, the provisions of the Limitation 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 impliedly inapplicable, principle of Section 14 of the Limitation Act can be held to be applicable even if Section 29(2) of the Limitation Act does not apply." (viii) In the decision of Shakti Tubes V State of Bihar (2009) 1 Supreme Court Cases at Page 786 at sp.pg.787 and 788 wherein it is observed and held as under: "Section 14 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 wa....
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....ld not be read in the Act of 1996, which will advance the cause of justice. (Para 19) The Arbitration and Conciliation Act, 1996 does not expressly exclude the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite commercial issues. It is also clear in the Statement of Objects and Reasons that in order to recognise economic reforms the settlement of both domestic and international commercial disputes should be disposed of quickly so that the country's economic progress be expedited. The Statement of Objects and Reasons also nowhere indicates that Section 14 of the limitation 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 ....
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.... Para 5. But the application under Section 29 read with Section 14 was not maintainable as it was filed after April, 1957. On this point, we adopt the reasoning and conclusion of the Full Bench of the Bombay High Court in Ramachandra anant v. Janardhan, We agree with the following observations of Chainani, C.J. in the aforesaid case: "It has been contended that as there is no provision in the Act that an application on the grounds mentioned in Section 14 cannot be made after April 1, 1957, such an application, it could not have intended that it should not be availed of in any case. There is undoubtedly force in this argument, but it seems to us that the intention of the legislature in enacting Section 32 clearly 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 ap....
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....preme Court in Chatisgarh State Electricity board V Central Electricity Regulatory Commission and others (2010) 5 SCC P.23 at Sp.Pg.32 and 43, wherein it is observed as under : "Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Section 111(2) and 125 is substantially different from the period 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 wheth....
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....nce between the expression used in the Arbitration Act as considered by Popular Construction (Union of India V Popular Construction Co.(2001) 8 SCC 470 and its absence in the proviso in Section 421(3). For the reasons given above, we are of the view that this would also make no difference in view of the language of the proviso to Section 421(3) which contains mandatory or peremptory negative language and speaks of a second period not exceeding 45 days, which would have the same effect as the expression "but not thereafter" used in Section 34(3) proviso of the Arbitration Act, 1996." (f) In the judgement of Hon'ble Supreme Court in Municipal Corporation of Delhi V Yashwant Singh Neghi in (Special Leave Petition)(Civil )No.4616 of 2010 dated 12.7.2020, at Para 3, 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 becau....
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....ereby affirming the decree or order. In such a contingency there is no question or any merger and anyone aggrieved by the decree or order of the Tribunal or court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition." (g) The Learned Counsel for the Respondent refers to the judgement dated 30.11.2017 of this 'Tribunal' in Amod Amladi V.Sayali Rane & Ors in Company Appeal (AT)(Ins)No 295 of 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 ....
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....03 of 1976. Para 7:The first question that we have to decide is that of limitation. The delay of 1198 days according to the appellants had occurred unwillingly and the appellants had been prosecuting with due diligence the earlier proceedings before the appellate and the revisional authorities and on the basis of the advice given by their counsel. There is no proper affidavit of either the appellants or the counsel in support of the application for condonation of delay. There is also no other material to indicate that the appellants had exercised due diligence in working out their remedies and sought proper advice in the matter. When the party had no right of appeal, the proceedings instituted before the High Court challenging the judgement in the writ petition cannot be considered to be one 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....
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....d Counsel relies on the decision of the Hon'ble Travancore High Court in Govinda Menon Raman Menon and others v. Krishna Pillai Kesava Pilai and others reported in (1954) SCC Online Ker 85, wherein at Para 21, it is observed as under : " Mr.Velayudhan Nair further contended, that in case the date of the District Munsiff's order was the date for the commencement of limitation, the time spent in prosecuting the appeal to the District Court and that spent in the District Court and the High court to get the appeal restored to the file, should be excluded under the provisions of Section 14 of the Limitation Act. The decision in AIR 1929 Rang 297(B) and - 'Narayan Ambaji v Hari Ganesh', (C), earlier show that a proceeding contrary to a clearly expressed provision of law cannot be regarded as prosecuting another 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 sustain....
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....xcused by this 'Tribunal'. 27. On behalf of the 'Respondent', it is submitted that the IA No.774 of 2020 filed by the Petitioner/Appellant is not maintainable because of the fact that the 'delay' in question is beyond not only the initial period of 30 days, but also the 'further period' as provided under the 'Statute' and in fact there is a delay of 193 days. 28. Section 61 of the 'Insolvency & Bankruptcy Code' enjoins that an 'Appeal' shall be filed within 30 days before the National Company Law Appellate Tribunal and a further period of 15 days is provided only if 'sufficient cause' is made out for preferring the 'Appeal' within the extended period. Furthermore, the aspect of 'Consolidated Appeal' does not arise in any event, the 'application for condonation of delay', is liable to be dismissed, of 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 i....
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....ary 2020 To 4 February 2020 Time taken by the Appellant to file the present consolidated Appeal before the Hon'ble NCLAT 25 days Total 224 days 34. This 'Tribunal' has heard the Learned Counsel for the Petitioner/Appellant as well as the Learned Counsel for the 'Respondent' and noticed their contentions. On a careful consideration of respective contentions, 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'. 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 'Tribu....