TaxTMI 
TaxTMI 
2023 (12) TMI 1507
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....inst the Order of the Commissioner of Payments be held as maintainable having been filed after a period of nearly three years from the said order? THE APPEAL 2. This Civil Appeal assails a judgement of the Gauhati High Court passed in CRP No. 263 of 2009 dated 21 July 2011, by which the Civil Revision Petition against the Order dated 14 May 2009 passed by the learned District Judge, Kamrup, Gauhati in M.A Case No. 18/2008 stands allowed. BACKGROUND OF FACTS AND PREVIOUS PROCEEDINGS 3. The Claimant-Appellants [Respondents before the High Court. Hereinafter referred to as Claimant-Appellant.] and Respondents [Review Petitioner before the High Court] are both companies registered under the Companies Act, 1956. The Appellant had received Orders to supply certain goods to the Respondents. After doing so, they raised certain bills which were only partly paid by the Respondents. 3.1 Subsequently, the Respondents was declared "a sick company" under the Sick Industrial Companies (Special Provisions) Act, 1935. For the necessitated rejuvenation of the industry, the Government of Assam promulgated the Jogighopa (Assam) Unit of Ashok Paper Mills Limited (Acquisition Transfer of ....
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....1993 Act"]. It was directed that any additional interest, if found payable, shall be paid within 60 days of the Order. 3.6 Against the said Order, the Respondents - non-claimants herein filed Review Application [Review Application 91 of 2001]. The ground of assail was that the amount payable against the bills pending, have already been paid and therefore no ground for re-calculation of interest is made out. The High Court, in consideration of the 1993 Act under which the interest was claimed held that, the interest calculable and due would only be from 23rd September, 1992 as the Act was brought into force on such date. 3.7 On further remand [Order bearing No- DI(V)APM/NEC/199/2005/26; Dated 13 April 2005], the Commissioner recorded lack of funds to consider the request any further and stated that upon further recalculation, as it is, no further amount payable was found. 3.8 Subsequently, the Claimant - Appellants filed an appeal thereagainst as also, moved an Application before the District Judge, Guwahati under Section 5 of the Limitation Act 1963 for condonation of delay in filing Appeal No. 18/2008. 3.9 It was observed by the learned District Judge vide Order dated ....
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....cedure governing the Appeal shall be in accordance with the Code. In particular, reliance is placed on paras 6-8, 18, 19 and 33 of the said Constitution Bench judgement. 6.2 Another "condition precedent" for the employment of Article 116 is that the Appeal governed thereby arise from an Order or a Decree. It is submitted that, in the present case, the Order passed is neither a Decree nor an Order. Further it is submitted that the Order dated 13 April 2005 which was the Order against which the subject Appeal had been filed, was an Order passed by an executive officer who is neither a Court nor a Civil Court as recognised in Law. The Learned Senior Counsel relies on Nahar Industrial Enterprises Ltd. v. Hongkong & Shanghai Banking Corporation [(2009) 8 SCC 646] In particular, paras 26, 67 - 69, 71 - 73, 85, 86 and 89 are relied upon. 6.3 The powers of the Civil Court, conferred upon the Commissioner of payments are for a very limited purpose. It is for this reason that Article 116 would not apply. Thereby meaning that the present Appeal is outside the purview of the Limitation Act and can be filed at any time. Reference is made to Uttam Namdeo Mahale v. Vithal Deo & Ors. [(1997)....
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....tiate this position, Learned Senior Counsel refers to Amalendu Kumar Bera v. State of W.B. [(2013) 4 SCC 52] 7.7 It is further submitted without prejudice, that in the absence of a prescribed Statutory Limitation, approaching the Court, is to be done within "reasonable time". Satyan v. Deputy Commissioner [(2020) 14 SCC 210] is relied on. 7.8 Section 19 of the Act provides for a claim before the Commissioner to be filed within 30 days from the specified date. It provides that if such authority is satisfied that the claimant was prevented by sufficient cause, he may entertain the claim within a further period of 30 days, but no later - this suggests that the intention was to provide for a summary and expeditious claim disposal mechanism. This further suggests, it is submitted, that it would be unfair to suggest that the Legislature had provided a strict timeline for claims but intended to provide an endless opportunity for appeals. CONSIDERATION BY THIS COURT 8. The term "Court" is not defined under the Code. What it does define is a decree and an order in Section 2(2) and Section 2(14) respectively. The said definitions are extracted below. "Section 2(2) "Decre....
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....; and b) to any other court from an order, 30 days from the date of order/decree. 12. The Claimant - Appellants contend that this court judgment in Vidyacharan Shukla (supra) is clearly distinguishable from the present dispute. In the said case, inter alia, the court was faced with a statute (Representation of Peoples Act, 1951), to which the Court has been made expressly applicable, whereas the same is not the case here. On the other hand, the respondents argue that since an appeal under Section 22 (8) of the Jogighopa Act is to a principal court of original civil jurisdiction, which qualifies as an appeal 'governed by the Court' - Article 116 of the Limitation Act shall be attracted. 13. The Constitution Bench in Vidyacharan Shukla referred to three judgments of High Courts in Aga Mahomed Hamadani v. Cohen [(1886) ILR 13 Cal 221], Ramasami Pillai v. Deputy Collector of Madura [AIR 1920 Mad 407], and Dropadi v. Hira Lal [ILR (1912) 34 All 496 (FB)]. In each of these three decisions, the respective High Courts were tasked with the question of application of Article 156 of the Limitation Act (now Article 116) to the Burma Court's Act, the Provincial Insolvency Act,....
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.... limited but further under Section 22 (7) ["7.Any investigation before the Commissioner shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code, and the Commissioner shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973."]. The application thereof is also equally well circumscribed therein, the Commissioner has been deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. Section 195 provides for Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Chapter XXVI relates to Provisions as to Offences Affecting the Administration of Justice. 17. The above description of the powers of either the Code or Cr.P.C. clearly testifies to the intent of the state legislature to specifically restrict the application of both the said codes, to only the extent provided. The principle of statutory interpretation: expression unius est exclusion alterius (the expression of one thing is the exclusion of the othe....
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....vernable by the code. Here only we may note the proviso to Section 22 (8) which states that in case the Commissioner under the Jogighopa Act is a Judge of a High Court, then an appeal from an order of such Commissioner shall lie before no less than two Judges of the High Court. 21. It is in this light that we find Section 22 (8) of the Jogighopa Act cannot be said to be an appeal under the code governed by Article 116 of the Limitation Act. The conclusion which beckons then is that the period of limitation mentioned under such article of the Limitation Act shall not apply to Section 22 (8) of the Jogighopa Act. The Claimant - Appellants contention of the impugned judgement's reliance on with Vidyacharan Shukla (supra) being misplaced, therefore, has to be accepted. 22. Having come to the conclusion as above, we are required to consider, whether the instant appeal, filed against the order of the Commissioner of Payments is maintainable or not? Prior to delving into such a question, we would also need to examine as to whether in the absence of an expressly prescribed limitation, can an appeal from an order passed by the Commissioner of Payments, be entertained, irrespective....
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....rohit & Co. v. Khatoonbee. [(2017) 4 SCC 783] 25. In light of above discussion, it is clear that when a Court is seized of a situation where no limitation stands provided either by specific applicability of the Limitation Act or the special statute governing the dispute, the Court must undertake a holistic assessment of the facts and circumstances of the case to examine the possibility of delay causing prejudice to a party. When no limitation stands prescribed it would be inappropriate for a Court to supplant the legislature' s wisdom by its own and provide a limitation, more so in accordance with what it believes to be the appropriate period. A court should, in such a situation consider in the facts and circumstances of the case at hand, the conduct of the parties, the nature of the proceeding, the length of delay, the possibility of prejudice being caused, and the scheme of the statute in question. It may be underscored here that when a party to a dispute raises a plea of delay despite no specific period being prescribed in the statute, such a party also bears the burden of demonstrating how the delay in itself would cause the party additional prejudice or loss as opposed ....