In the absence of proper ground delay cannot be condone with the AAIFR

* IN THE HIGH COURT OF DELHI AT New Delhi

Date of Decision: 08.05.2012

+ WP (C) No.2728 of 2012

M/S AGARPARA JUTE MILLS LTD..... Petitioner

Through: Mr. Sudhir Nandrajog, Sr. Adv. with

Mr. Vikram Mehta & Mr. Shakeel Ahmed, Advs.

Versus

BOARD FOR INDUSTRIAL AND

FINANCIAL RECONSTRUCTION & ORS. ..... Respondents

Through: Mr. C. Mukund & Mr. Pankaj Jain, Advs. for R-2.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON‟BLE MR. JUSTICE RAJIV SHAKDHER

SANJAY KISHAN KAUL, J. (Oral)

1. The appeal filed by the appellant before the AAIFR has been dismissed vide impugned order dated 9.11.2011 as being barred by time.

2. The proceedings have been pending against the company before the BIFR for a considerable period of time. The reference was filed as far back as in the year 1993. Qua certain directions issued the holding company of the petitioner approached this Court by filing WP (C) No.7212/2010. The writ petition was disposed of on 9.11.2010 granting ten (10) days‟ time to the parties who were aggrieved to approach the AAIFR while simultaneously recording the consent of the parties that till such time no steps will be taken to implement the impugned order of the BIFR.

3. It is the say of the petitioner that they applied for a certified copy of the order on the same date, which was received on 12.11.2010 but filed the appeal on 31.1.2011. Thus, it is not in dispute that the appeal is barred by time and is even beyond the window of extra fifteen (15) days available to the appellant, the same being filed even beyond sixty (60) days. The appeal was accompanied by an application for condonation of delay. In terms of the impunged order the AAIFR has found that it has no power to condone the delay beyond the period of sixty (60) days in view of the provisions of Section 25 (1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the „SICA‟).

4. We are in agreement with the view taken by the AAIFR in view of the statutory provision. We may refer to the said provision which reads as under:

“25. Appeal.- (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the appellate authority: PROVIDED that the appellate authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.”

5. It is, thus, clear that the statute in question itself provides the time period for appeal and makes a provision for extension of that time period provided sufficient cause is shown. Thus, a special provision has been included qua the issue of limitation in filing the appeal. The language of Section 25 of the SICA makes it clear that there is no scope for condoning the delay beyond the period of sixty (60) days. The expression used in the provision “but not after sixty days” leaves no manner of doubt that Section 5 of the Limitation Act, 1963 would have no applicability qua Section 25 of the SICA. In this regard we quote with profit the observations of the Supreme Court in the case of UOI Vs. Popular Construction Company (2001) 8 SCC 470 as under:  

“10. This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. it is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukum Narain Yadav v. Lalit Narain Mishra : "If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act".

11. Thus, where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Section 4 5 and 12 of the Limitation Act, the specific inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded.

12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to sub-section (3). In or opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.

13. 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 extend the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation".

6. Even otherwise if the merits of the explanation given for filing the appeal belatedly are examined, (as much stress was laid on this aspect by learned counsel for the petitioners) we find that the same do not disclose sufficient cause as it is the own say of the petitioner that an appeal filed by the holding company is pending and the opinion received earlier was against filing an appeal but a subsequent opinion advised the petitioner to file an appeal and, thus, the appeal has been filed belatedly. The petitioner having received the certified copy, obtained the legal opinion and taken a conscious decision not to file an appeal cannot subsequently file an appeal belatedly and plead that the delay should be condoned because another legal advice received thereafter was to file an appeal.

7. We, thus, find that neither is there any power to condone the delay with the AAIFR nor was there any sufficient cause shown to condone the delay, thus, on both accounts there is no ground made out to interfere with the impugned order under Article 226 of the Constitution of India.

8. Dismissed.

CM No.5878/2012 (Stay)

In view of the dismissal of the writ petition, the application does not survive for consideration and the same stands disposed of.

SANJAY KISHAN KAUL, J.

RAJIV SHAKDHER, J.

MAY 08, 2012

b’nesh