REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4367 OF 2004
M.P. STEEL CORPORATION …APPELLANT
VERSUS
COMMISSIONER OF CENTRAL
EXCISE ...RESPONDENT
J U D G M E N T
R.F. Nariman, J.
1. The facts giving rise to the present appeal are as follows.
The appellant is engaged in ship breaking activity at Alang Ship
Breaking Yard. The appellant imported a vessel, namely, M.V. Olinda,
for the purpose of breaking the same, and filed a Bill of Entry when
the vessel was imported on 7.2.1992. It declared in the said Bill of
Entry that the Light Displacement Tonnage of the vessel was 7009
metric tons. On 19.2.1992, the appellant was informed by the
Superintendent of Customs and Central Excise Alang that the Light
Displacement Tonnage of the ship is actually 8570 tons and that
customs duty was to be levied on this tonnage. On 3.3.1992, the
appellant cleared the vessel on payment of customs duty on the basis
of 7009 metric tons and executed a bank guarantee for Rs.19,90,275/-
being the difference in customs duty on 1561 metric tons. On
25.3.1992, the Collector of Customs, Rajkot, directed the Assistant
Collector, Bhavnagar to encash the bank guarantee furnished by the
appellant. On 2.4.1992, the Superintendent of Customs and Central
Excise sent a letter to the appellant communicating the decision of
the Collector, as aforesaid. The bank guarantee was duly encashed on
3.4.1992. After protesting against the said illegal action of the
Department in encashing the bank guarantee, the appellant preferred an
appeal against the Superintendent’s letter dated 2.4.1992 and the
Collector’s order dated 25.3.1992 before CEGAT. On 23.6.1998, the
Appellate Tribunal allowed the appeal and set aside the order of the
Collector dated 25.3.1992. In the year 2000, the Department preferred
an appeal before this Court. On 12.3.2003, this Court allowed the
appeal holding:
“This appeal is against a judgment dated 23.6.1998 passed
by the Customs, Excise And Gold (Control) Appellate Tribunal,
West Regional Bench at Mumbai.
Facts briefly stated are that the respondent filed a Bill
of Entry in respect of ship M.V. Olinda imported by them for
purposes of breaking. The respondent showed the light
displacement tonnage (LDT) as 7009 metric tons. This
declaration was not accepted by the Superintendent of Customs
and Central Excise. The respondent, thus, approached the
Assistant Collector. The question was how LDT was to be
calculated. It appears that between the Assistant Collector and
the Collector there was some internal correspondence on this
aspect. The Collector took a policy decision on how LDT was to
be calculated. The Collector conveyed this decision to the
Assistant Collector by his letter dated 25.3.1992. Pursuant
thereto the Superintendent of Customs and Central Excise passed
an order dated 2nd April, 1992 in respect of vessel M.V.
“Olinda”. Of course the order dated 2nd April, 1992 is based on
the decision of the Collector. However, the order remains that
of the Superintendent of Customs and Central Excise.
The respondent filed an appeal directly before CEGAT.
CEGAT has disposed of this appeal by the impugned order. CEGAT
negatived a contention that the appeal was not maintainable
before them on the basis that the Superintendent’s order is
nothing more than a communication of the order passed by the
Collector (Appeals). CEGAT held that the appeal was in fact
against the Collector’s order.
In our view, the reasoning of CEGAT cannot be sustained.
The decision taken by the Collector was not taken in his
capacity as Collector (Appeals). Also the order by which
respondent is aggrieved is the order passed by the
Superintendent. An appeal against that order has to be filed
before the Commissioner (Appeals) under Section 128. By virtue
of Section 129-A, CEGAT has no jurisdiction to entertain such an
appeal.
It is clear that the impugned order is passed without any
jurisdiction. Therefore, it cannot be sustained. We, thus, set
aside the order. The appeal is accordingly allowed. There will
be no order as to costs.
We clarify that we have not gone into the merits of the
matter and that it will be open to the respondent to adopt such
remedy as they may be advised, if in law they are entitled to do
so.”
2. After this judgment, on 23.5.2003, the appellant filed an appeal
before the Commissioner (Appeals) against the order passed by the
Superintendent, Customs dated 2.4.1992. On 4.8.2003, an application
to condone delay in filing the appeal was made in the following terms:
“As appeal against the order of the Supdt. of Customs was
filed by us within 60 days of the receipt of the certified true
copy of the judgment of the Hon’ble Supreme Court. It is our
respectful submission that since the appeal was filed by us
before the correct forum with due dispatch after receipt of the
Supreme Court’s judgment, there has been no delay in filing the
appeal. It is well settled now that the time taken for pursuing
a remedy before another appellate Forum is to be excluded for
the purpose of computing the period for filing an appeal.
(Union Carbide India Ltd. Vs. CC 1998 (77) ECR 376, Karnataka
Minerals & Mfg. Co. Ltd. Vs. CCE 1998 (101) ELT 627).”
3. By an order dated 27.10.2003, the Commissioner of Customs
(Appeals) dismissed the appeal on the ground of delay stating that the
appeal had been filed way beyond the period of 60 days plus 30 days
provided for in Section 128 of the Customs Act. Against this order,
CESTAT dismissed the appeal of the appellant stating that the
Commissioner (Appeals) had no power to condone delay beyond the period
specified in Section 128.
4. Shri Viswanathan, learned senior advocate appearing on behalf of
the appellant argued before us that the entire period starting from
25.3.1992 up till 12.3.2003 ought to be excluded by applying Section
14 of the Limitation Act. According to him, Section 14 of the
Limitation Act would apply to exclude this period from the period of
90 days allowed in filing an appeal filed to the Collector (Appeals)
inasmuch as vide Section 29 (2) of the Limitation Act Section 14 of
the Limitation Act would also apply to Tribunals set up under special
or local Acts. According to him, the entire period with which he
was prosecuting, with due diligence, the abortive appeal filed before
CEGAT should be excluded, which would include the period even prior to
22.6.1992 when the abortive appeal was filed. As an alternative
submission, on the assumption that Section 14 applied only to Courts
and not to Tribunals, he submitted that the principle of Section 14
would then apply. According to him, Section 128 of the Customs Act
before its amendment in 2001 would be attracted on the facts of this
case giving him a period of 90 days plus an extended period of a
further period of 90 days within which the present appeal could be
filed. This being the case, on an application of Section 14, the
appeal would be filed with no delay at all even if the period from
3.4.1992 to 22.6.1992 and 12.3.2003 to 23.5.2003 is to be taken into
account, as that would be less than 180 days given to file the appeal
under the old Section 128. He cited a number of authorities which we
will deal with in the course of this judgment in support of all the
aforesaid propositions.
5. Shri A.K. Sanghi, learned senior advocate appearing on behalf of
the Department argued that Section 128 of the Customs Act excluded the
application of Section 14 of the Limitation Act in that the scheme of
the Section is that only a limited period should be given to an
assessee beyond which the appeal would become time barred. In the
present case, Section 128 as amended post 2001 would apply to the
facts of this case and on the appellant’s own showing the appeal is
out of time by eleven and a half years. Section 128 only gives the
appellant 60 days plus another 30 days which have long gone. He also
argued that Section 14 of the Limitation Act would not apply to
Tribunals but only to Courts, and the Collector (Appeals) was at best
a quasi-judicial Tribunal. Further, according to him, no question of
any principle of section 14 would get attracted. In fact, according
to him, there is no pleading qua Section 14 at all – the only pleading
is for condonation of delay and not for exclusion of time. Section 14
requires that five necessary ingredients must be satisfied on facts
before it can be attracted. The appellant has neither pleaded nor
proved any of these ingredients. He also cited a number of
authorities which we will refer to in the course of this judgment.
Ingredients of Section 14.
Section 14 of the Limitation Act reads as follows:
“14. Exclusion of time of proceeding bona fide in court
without jurisdiction.—(1) In computing the period of limitation
for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether
in a court of first instance or of appeal or revision, against
the defendant shall be excluded, where the proceeding relates to
the same matter in issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause of a
like nature, is unable to entertain it.
(2) In computing the period of limitation for any
application, the time during which the applicant has been
prosecuting with due diligence another civil proceeding, whether
in a court of first instance or of appeal or revision, against
the same party for the same relief shall be excluded, where such
proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is
unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order
XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the
provisions of sub-section (1) shall apply in relation to a fresh
suit instituted on permission granted by the court under Rule 1
of that Order, where such permission is granted on the ground
that the first suit must fail by reason of a defect in the
jurisdiction of the court or other cause of a like nature.
Explanation.—For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding
was pending, the day on which that proceeding was instituted and
the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed
to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to
be a cause of a like nature with defect of jurisdiction.”
6. Shri A.K. Sanghi, learned senior counsel appearing on behalf of
the Department has stated that at no point of time has the appellant
taken up a plea based on Section 14. Neither has the appellant met
with any of the five conditions set out in paragraph 21 of
Consolidated Engg. Enterprises v. Principal secy., Irrigation Deptt.,
(2008) 7 SCC 169, which reads as follows:-
“21. Section 14 of the Limitation Act deals with exclusion of
time of proceeding bona fide in a court without jurisdiction. On
analysis of the said section, it becomes evident that the
following conditions must be satisfied before Section 14 can be
pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence
and in good faith;
(3) The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate
to the same matter in issue and;
(5) Both the proceedings are in a court.”
7. Technically speaking, Shri A.K. Sanghi, may be correct.
However, in an application for condonation of delay the appellant
pointed out that they were pursuing a remedy before another appellate
forum which ought to be excluded. We deem this averment sufficient
for the appellant to contend that Section 14 of the Limitation Act or
principles laid down under it would be attracted to the facts of this
case.
We might also point out that conditions 1 to 4 mentioned in the
Consolidated Engineering case have, in fact, been met by the
appellant. It is clear that both the prior and subsequent proceedings
are civil proceedings prosecuted by the same party. The prior
proceeding had been prosecuted with due diligence and in good faith,
as has been explained in Consolidated Engineering itself. These
phrases only mean that the party who invokes Section 14 should not be
guilty of negligence, lapse or inaction. Further, there should be no
pretended mistake intentionally made with a
view to delaying the proceedings or harassing the opposite party. On
the facts of this case, as the earlier Supreme Court order dated
12.3.2003 itself points out, there was some confusion as to whether
what was appealed against was the Superintendent’s order or the
Collector’s order. The appellant bona fide believed that it was the
Collector’s order which was appealed against and hence an appeal to
CEGAT would be maintainable. This contention, however, ran into rough
weather in this Court. Further, the time taken between 3.4.1992 and
22.6.1992 to file an appeal cannot be said to be inordinately long.
Thus, neither was there any negligence, lapse or inaction on facts nor
did the appellant delay proceedings to harass the Department by
pretending that there was a mistake. Condition (3) was also directly
met – this Court in the order dated 12.3.2003 set aside CEGAT’s order
on the ground that it was without jurisdiction. It is indisputable
that the earlier proceeding and the later proceeding relate to the
same matter in issue and thus condition 4 is also met. Condition 5,
however, has not been met as both the proceedings are before a quasi-
judicial Tribunal and not in a Court. This, however, is not fatal to
the present proceeding as what is being held by us in this judgment is
that despite the fact that Section 14 of the Limitation Act may not
apply, yet the principles of Section 14 will get attracted to the
facts of the present case. It is in this way that we now proceed to
consider the law on the subject.
Whether the Limitation Act applies only to Courts and not to Tribunals
8. A perusal of the Limitation Act, 1963 would show that the bar of
limitation contained in the Schedule to the Act applies to suits, appeals,
and applications. “Suit” is defined in Section 2(l) as not including an
appeal or an application. The word “Court” is not defined under the Act.
However, it appears in a number of its provisions (See: Sections
4,5,13,17(2),21). A perusal of the Schedule would show that it is divided
into three divisions. The first division concerns itself with suits.
Articles 1 to 113 all deal with “suits”.
9. Sections 2(a),(e) and (i) are material in that they define what is
meant by an applicant, a plaintiff and a defendant.
“2. Definitions.—In this Act, unless the context otherwise
requires,—
(a) “applicant” includes—
(i) a petitioner;
(ii) any person from or through whom an
applicant derives his right to apply;
(iii) any person whose estate is represented by
the applicant as executor, administrator or
other representative;
(e) “defendant” includes—
(i) any person from or through whom a defendant
derives his liability to be sued;
(ii) any person whose estate is represented by
the defendant as executor, administrator or
other representative;
(i) “plaintiff” includes—
(i) any person from or through whom a plaintiff
derives his right to sue;
(ii) any person whose estate is represented by
the plaintiff as executor, administrator or
other representative;”
10. Section 3(2) which is material states as follows:
“3(2) For the purposes of this Act-
a) A suit is instituted-
(i)In an ordinary case, when the plaint
is presented to the proper officer;
(ii)In the case of a pauper, when his
application for leave to sue as a pauper
is made; and
(iii)In the case of a claim against a
company which is being wound up by the
court, when the claimant first sends in
his claim to the official liquidator;
(b) Any claim by way of a set off or a counter
claim, shall be treated as a separate suit and
shall be deemed to have been instituted –
(i)in the case of a set off, on the same
date as the suit in which the set off is
pleaded;
(ii)in the case of a counter claim, on
the date on which the counter claim is
made in court;
(c)an application by notice of motion in a
High Court is made when the application is
presented to the proper officer of that
court.”
11. A perusal of Section 3(2) shows that “suits” are understood as
actions begun in courts of law established under the Constitution of India.
12. In the Schedule, the second division concerns itself with appeals.
These appeals under Articles 114 to 117, are either under the Civil
Procedure Code, the Criminal Procedure Code, or intra-court appeals so far
as the High Courts are concerned. These appeals again are only to “Courts”
established under the Constitution.
13. Equally, in the third division, all applications that are referred to
are under Articles 118 to 137 only to “Courts”, either under the Civil
Procedure Code or under other enactments.
14. Sections 13, 21 and Articles 124, 130 and 131 of the Limitation
Act are again important in understanding what is meant by the
expression “Court”. They are set out below:
“13. Exclusion of time in cases where leave to sue or appeal as
a pauper is applied for.—In computing the period of limitation
prescribed for any suit or appeal in any case where an
application for leave to sue or appeal as a pauper has been made
and rejected, the time during which the applicant has been
prosecuting in good faith his application for such leave shall
be excluded, and the court may, on payment of the court fees
prescribed for such suit or appeal, treat the suit or appeal as
having the same force and effect as if the court fees had been
paid in the first instance.
21. Effect of substituting or adding new plaintiff or
defendant.—(1) Where after the institution of a suit, a new
plaintiff or defendant is substituted or added, the suit shall,
as regards him, be deemed to have been instituted when he was so
made a party:
Provided that where the court is satisfied that the omission
to include a new plaintiff or defendant was due to a mistake
made in good faith it may direct that the suit as regards such
plaintiff or defendant shall be deemed to have been instituted
on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a
party is added or substituted owing to assignment or devolution
of any interest during the pendency of a suit or where a
plaintiff is made a defendant or a defendant is made a
plaintiff.
Schedule
|124. |For a review of |Thirty |The date of|
| |judgment by a court|days |the decree |
| |other than the | |or order. |
| |Supreme Court. | | |
|130. |For leave to appeal| |
| |as a pauper -- | |
| |(a) to the High |Sixty days|The date of|
| |Court; | |decree |
| | | |appealed |
| | | |from. |
| |(b) to any other |Thirty |The date of|
| |court. |days |decree |
| | | |appealed |
| | | |from. |
|131. |To any court for |Ninety |The date of|
| |the exercise of its|days |the decree |
| |powers of revision | |or order or|
| |under the Code of | |sentence |
| |Civil Procedure, | |sought to |
| |1908 (5 of 1908), | |be revised.|
| |or the Code of | | |
| |Criminal Procedure,| | |
| |1898 (5 of 1898). | | |
It will be seen that suits and appeals that are covered by the
Limitation Act are so covered provided court fees prescribed for such
suits or appeals are paid. Under Section 13, set out hereinabove,
this becomes clear. That is why time is excluded in cases where leave
to file a suit or an appeal as a pauper is granted in the
circumstances mentioned in the Section. ‘Courts’ that are mentioned in
this Section are therefore courts as understood in the strict sense of
being part of the Judicial Branch of the State.
15. Section 21 also makes it clear that the suit that the Limitation
Act speaks of is instituted only by a plaintiff against a defendant.
Both plaintiff and defendant have been defined as including persons
through whom they derive their right to sue and include persons whose
estate is represented by persons such as executors, administrators or
other representatives. This again refers only to suits filed in
courts as is understood by the Code of Civil Procedure. In this
regard, Section 26 of the CPC states:
“Section 26- Institution of suits
(1)Every suit shall be instituted by the presentation of a
plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.”
16. When it comes to applications, again Articles 124, 130 and 131
throw a great deal of light. Only review of judgments by a “court” is
contemplated in the Third Division in the Schedule. Further, leave to
appeal as a pauper again can be made either to the High Court or only
to any other court vide Article 130. And by Article 131, a revision
petition filed only before Courts under the Code of Civil Procedure
Code or the Code of Criminal Procedure are referred to. On a plain
reading of the provisions of the Limitation Act, it becomes clear that
suits, appeals and applications are only to be considered (from the
limitation point of view) if they are filed in courts and not in quasi-
judicial bodies.
17. Now to the case law. A number of decisions have established
that the Limitation Act applies only to courts and not to Tribunals.
The distinction between courts and quasi-judicial decisions is
succinctly brought out in Bharat Bank Ltd. v. Employees of Bharat Bank
Ltd., 1950 SCR 459. This root authority has been followed in a catena
of judgments. This judgment refers to a decision of the King’s Bench
in Cooper v. Wilson. The relevant quotation from the said judgment is
as follows:-
“A true judicial decision presupposes an existing dispute
between two or more parties, and then involves four requisites:
(1) The presentation (not necessarily orally) of their case by
the parties to the dispute; (2) if the dispute between them is a
question of fact, the ascertainment of the fact by means of
evidence adduced by the parties to the dispute and often with
the assistance of argument by or on behalf of the parties on the
evidence; (3) if the dispute between them is a question of law,
the submission of legal argument by the parties, and (4) a
decision which disposes of the whole matter by a finding upon
the facts in dispute and application of the law of the land to
the facts so found, including where required a ruling upon any
disputed question of law. A quasi-judicial decision equally
presupposes an existing dispute between two or more parties and
involves (1) and (2), but does not necessarily involve (3) and
never involves (4). The place of (4) is in fact taken by
administrative action, the character of which is determined by
the Minister's free choice.”
18. Under our constitutional scheme of things, the judiciary is
dealt with in Chapter IV of Part V and Chapter V of Part VI. Chapter
IV of Part V deals with the Supreme Court and Chapter V of Part VI
deals with the High Courts and courts subordinate thereto. When the
Constitution uses the expression “court”, it refers to this Court
system. As opposed to this court system is a system of quasi-judicial
bodies called Tribunals. Thus, Articles 136 and 227 refer to “courts”
as distinct from “tribunals”. The question in this case is whether
the Limitation Act extends beyond the court system mentioned above and
embraces within its scope quasi-judicial bodies as well.
19. A series of decisions of this Court have clearly held that the
Limitation Act applies only to courts and does not apply to quasi-
judicial bodies. Thus, in Town Municipal Council, Athani v. Presiding
Officer, Labour Court, (1969) 1 SCC 873, a question arose as to what
applications are covered under Article 137 of the Schedule to the
Limitation Act. It was argued that an application made under the
Industrial Disputes Act to a Labour Court was covered by the said
Article. This Court negatived the said plea in the following terms:-
“12. This point, in our opinion, may be looked at from another
angle also. When this Court earlier held that all the articles
in the third division to the schedule, including Article 181 of
the Limitation Act of 1908, governed applications under the Code
of Civil Procedure only, it clearly implied that the
applications must be presented to a court governed by the Code
of Civil Procedure. Even the applications under the Arbitration
Act that were included within the third division by amendment of
Articles 158 and 178 were to be presented to courts whose
proceedings were governed by the Code of Civil Procedure. As
best, the further amendment now made enlarges the scope of the
third division of the schedule so as also to include some
applications presented to courts governed by the Code of
Criminal Procedure. One factor at least remains constant and
that is that the applications must be to courts to be governed
by the articles in this division. The scope of the various
articles in this division cannot be held to have been so
enlarged as to include within them applications to bodies other
than courts, such as a quasi judicial tribunal, or even an
executive authority. An Industrial Tribunal or a Labour Court
dealing with applications or references under the Act are not
courts and they are in no way governed either by the Code of
Civil Procedure or the Code of Criminal Procedure. We cannot,
therefore, accept the submission made that this article will
apply even to applications made to an Industrial Tribunal or a
Labour Court. The alterations made in the article and in the new
Act cannot, in our opinion, justify the interpretation that even
applications presented to bodies, other than courts, are now to
be governed for purposes of limitation by Article 137.”
Similarly, in Nityananda, M. Joshi & Ors. v. Life Insurance
Corporation & Ors., (1969) 2 SCC 199, this Court followed the judgment
in Athani’s case and turned down a plea that an application made to a
Labour Court would be covered under Article 137 of the Limitation Act.
This Court emphatically stated that Article 137 only contemplates
applications to courts in the following terms:
“3. In our view Article 137 only contemplates applications to
Courts. In the Third Division of the Schedule to the Limitation
Act, 1963 all the other applications mentioned in the various
articles are applications filed in a court. Further Section 4 of
the Limitation Act, 1963, provides for the contingency when the
prescribed period for any application expires on a holiday and
the only contingency contemplated is “when the court is closed.”
Again under Section 5 it is only a court which is enabled to
admit an application after the prescribed period has expired if
the court is satisfied that the applicant had sufficient cause
for not preferring the application. It seems to us that the
scheme of the Indian Limitation Act is that it only deals with
applications to courts, and that the Labour Court is not a court
within the Indian Limitation Act, 1963.'”
20. In Kerala State Electricity Board v. T.P. Kunhaliumma, (1976) 4
SCC 634, a 3-Judge Bench of this Court followed the aforesaid two
judgments and stated:-
“22. The conclusion we reach is that Article 137 of the 1963
Limitation Act will apply to any petition or application filed
under any Act to a civil court. With respect we differ from the
view taken by the two-judge bench of this Court in Athani
Municipal Council case [(1969) 1 SCC 873 : (1970) 1 SCR 51] and
hold that Article 137 of the 1963 Limitation Act is not confined
to applications contemplated by or under the Code of Civil
Procedure. The petition in the present case was to the District
Judge as a court. The petition was one contemplated by the
Telegraph Act for judicial decision. The petition is an
application falling within the scope of Article 137 of the 1963
Limitation Act.”
This judgment is an authoritative pronouncement by a 3-Judge Bench
that the Limitation Act applies only to courts and not to quasi-
judicial Tribunals. Athani’s case was dissented from on a different
proposition – that Article 137 is not confined to applications under
the Code of Civil Procedure alone. So long as an application is made
under any statute to a Civil Court, such application will be covered
by Article 137 of the Limitation Act.
21. The stage is now set for a decision on which wide ranging
arguments were made by counsel on both sides. In Commissioner of
Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur, (1975) 4
SCC 22, a 3-Judge Bench was confronted with whether Section 14 of the
Limitation Act applied to the Sales Tax authorities under the U.P.
Sales Tax Act. In no uncertain terms, this Court held:-
“8. Mr Karkhanis is right that this matter is no longer res
Integra. In Shrimati Ujjam Bai v. State of U.P. [AIR 1962 SC
1621 : (1963) 1 SCR 778] Hidayatullah, J. (as he then was)
speaking for the Court, observed:
“The Taxing authorities are instrumentalities of the State. They
are not a part of the legislature, nor are they a part of the
Judiciary. Their functions are the assessment and collection of
taxes and in the process of assessing taxes, they follow a
pattern of action which is considered judicial. They are not
thereby converted into courts of civil judicature. They still
remain the instrumentalities of the State and are within the
definition of ‘State’ in Article 12.”
9. The above observations were quoted with approval by this
Court in Jagannath Prasad case [AIR 1963 SC 416 : (1963) 2 SCR
850 : 14 STC 536] and it was held that a Sales Tax Officer under
U.P. Sales Tax Act, 1948 was not a court within the meaning of
Section 195 of the Code of Criminal Procedure although he is
required to perform certain quasi-judicial functions. The
decision in Jagannath Prasad case it seems, was not brought to
the notice of the High Court. In view of these pronouncements of
this Court, there is no room for argument that the Appellate
Authority and the Judge (Revisions) Sales tax exercising
jurisdiction under the Sales Tax Act, are “courts”. They are
merely Administrative Tribunals and “not courts”. Section 14,
Limitation Act, therefore, does not, in terms apply to
proceedings before such tribunals.”
It then went on to discuss whether the general principle underlying
Section 14 would be applicable and held:-
“12. Three features of the scheme of the above provision are
noteworthy. The first is that no limitation has been prescribed
for the suo motu exercise of its jurisdiction by the revising
authority. The second is that the period of one year prescribed
as limitation for filing an application for revision by the
aggrieved party is unusually long. The third is that the
revising authority has no discretion to extend this
period beyond a further period of six months, even on sufficient
cause shown. As rightly pointed out in the minority judgment of
the High Court, pendency of proceedings of the nature
contemplated by Section 14(2) of the Limitation Act, may amount
to a sufficient cause for condoning the delay and extending the
limitation for filing a revision application, but Section 10(3-
B) of the Sales Tax Act gives no jurisdiction to the revising
authority to extend the limitation, even in such a case, for a
further period of more than six months.
13. The three stark features of the scheme and language of the
above provision, unmistakably show that the legislature has
deliberately excluded the application of the principles
underlying Sections 5 and 14 of the Limitation Act, except to
the extent and in the truncated form embodied in sub-section (3-
B) of Section 10 of the Sales Tax Act. Delay in disposal of
revenue matters adversely affects the steady inflow of revenues
and the financial stability of the State. Section 10 is
therefore designed to ensure speedy and final determination of
fiscal matters within a reasonably certain time-schedule.
14. It cannot be said that by excluding the unrestricted
application of the principles of Sections 5 and 14 of the
Limitation Act, the legislature has made the provisions of
Section 10 unduly oppressive. In most cases, the discretion to
extend limitation, on sufficient cause being shown for a further
period of six months only, given by sub-section (3-B) would be
enough to afford relief. Cases are no doubt conceivable where an
aggrieved party, despite sufficient cause, is unable to make an
application for revision within this maximum period of 18
months. Such harsh cases would be rare. Even in such exceptional
cases of extreme hardship, the revising authority may, on its
own motion, entertain revision and grant relief.”
22. It is clear that this judgment clearly laid down two things –
one that authorities under the Sales Tax Act are not “courts” and
thus, the Limitation Act will not apply to them. It also laid down
that the language of Section 10 (3-B) of the U.P. Sales Tax Act made
it clear that an unusually long period of limitation had been given
for filing a revision application and therefore said that the said
Section as construed by the Court would not be unduly oppressive. Most
cases would, according to the Court, be filed within a maximum period
of 18 months but even in cases, rare as they are, filed beyond such
period, the revising authority may on its own motion entertain the
revision and grant relief. Given the three features of the U.P. Sales
Tax Act scheme, the Court held that the legislature deliberately
excluded the application of the principle underlying Section 14 except
to the limited extent that it may amount to sufficient cause for
condoning delay within the period of 18 months.
23. Close upon the heels of this judgment comes another 3-Judge
Bench decision under the same provision of the U.P. Sales Tax Act. In
this judgment, another 3-Judge Bench in C.S.T. v. Madan Lal Das and
Sons, 1976 (4) SCC 464, without adverting to either Parson Tools or
the three other judgments mentioned hereinabove went on to apply
Section 12 (2) of the Limitation Act to proceedings under the U.P.
Sales Tax Act. None of the aforesaid four decisions were pointed out
to the court and it was not argued that the Limitation Act applies
only to courts and not to Sales Tax authorities who are quasi-judicial
Tribunals. This judgment, therefore, is not an authority for the
proposition that the Limitation Act would apply to Tribunals as
opposed to courts. Clearly the conclusion reached would be contrary
to four earlier decisions three of which are 3-Judge Bench decisions.
24. In fact, even after this judgment, in Officer on Special Duty
(Land Acquisition) v. Shah Manilal Chandulal, (1996) 9 SCC 414, this
Court held that a Land Acquisition Officer under the Land Acquisition
Act not being a court, the provisions of the Limitation Act would not
apply. The court concluded, after adverting to some of the previous
judgments of this Court as follows:-
“18. Though hard it may be, in view of the specific limitation
provided under proviso to Section 18(2) of the Act, we are of
the considered view that sub-section (2) of Section 29 cannot be
applied to the proviso to sub-section (2) of Section 18. The
Collector/LAO, therefore, is not a court when he acts as a
statutory authority under Section 18(1). Therefore, Section 5 of
the Limitation Act cannot be applied for extension of the period
of limitation prescribed under proviso to sub-section (2) of
Section 18. The High Court, therefore, was not right in its
finding that the Collector is a court under Section 5 of the
Limitation Act.
19. Accordingly, we hold that the applications are barred by
limitation and the Collector has no power to extend time for
making an application under Section 18(1) for reference to the
court.”
25. Two other judgments of this Court need to be dealt with at this
stage. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995)
5 SCC 5, a 2-Judge Bench of this Court held that the Limitation Act
would apply to the appellate authority constituted under Section 13 of
the Kerala Buildings (Lease and Rent Control) Act , 1965. This was
done by applying the provision of Section 29(2) of the Limitation Act.
Despite referring to various earlier judgments of this Court which
held that the Limitation Act applies only to courts and not to
Tribunals, this Court in this case held to the contrary. In
distinguishing the Parson Tools’ case, which is a 3-Judge Bench
binding on the Court that decided Mukri Gopalan’s case, the Court
held:-
“If the Limitation Act does not apply then neither Section 29(2)
nor Section 14(2) of the Limitation Act would apply to
proceedings before him. But so far as this Court is concerned it
did not go into the question whether Section 29(2) would not get
attracted because the U.P. Sales Tax Act Judge (Revisions) was
not a court but it took the view that because of the express
provision in Section 10(3)(B) applicability of Section 14(2) of
the Sales Tax Act was ruled out. Implicit in this reasoning is
the assumption that but for such an express conflict or contrary
intention emanating from Section 10(3)(B) of the U.P. Sales Tax
Act which was a special law, Section 29(2) would have brought in
Section 14(2) of the Limitation Act even for governing period of
limitation for such revision applications. In any case, the
scope of Section 29(2) was not considered by the aforesaid
decision of the three learned Judges and consequently it cannot
be held to be an authority for the proposition that in
revisional proceedings before the Sales Tax authorities
functioning under the U.P. Sales Tax Act Section 29(2) cannot
apply as Mr. Nariman would like to have it.”
It then went on to follow the judgment reported in The Commissioner of
Sales Tax, U.P. v. M/s. Madan Lal Das & Sons, Bareilly, (1976) 4 SCC
464 which, as has been pointed out earlier, is not an authority for
the proposition that the Limitation Act would apply to Tribunals. In
fact, Mukri Gopalan’s case was distinguished in Om Prakash v. Ashwani
Kumar Bassi, (2010) 9 SCC 183 at paragraph 22 as follows:
“22. The decision in Mukri Gopalan case [(1995) 5 SCC 5] relied
upon by Mr Ujjal Singh is distinguishable from the facts of this
case. In the facts of the said case, it was the District Judges
who were discharging the functions of the appellate authority
and being a court, it was held that the District Judge,
functioning as the appellate authority, was a court and
not persona designata and was, therefore, entitled to resort to
Section 5 of the Limitation Act. That is not so in the instant
case where the Rent Controller appointed by the State Government
is a member of the Punjab Civil Services and, therefore,
a persona designata who would not be entitled to apply the
provisions of Section 5 of the Limitation Act, 1963, as in the
other case.”
The fact that the District Judge himself also happened to be the
appellate authority under the Rent Act would have been sufficient on
the facts of the case for the Limitation Act to apply without going
into the proposition that the Limitation Act would apply to tribunals.
26. Quite apart from Mukri Gopalan’s case being out of step with at
least five earlier binding judgments of this Court, it does not square
also with the subsequent judgment in Consolidated Engg. Enterprises v.
Principal secy., Irrigation Deptt., (2008) 7 SCC 169. A 3-Judge Bench
of this Court was asked to decide whether Section 14 of the Limitation
Act would apply to Section 34(3) of the Arbitration and Conciliation
Act, 1996. After discussing the various provisions of the Arbitration
Act and the Limitation Act, this Court held:
“23. At this stage it would be relevant to ascertain whether
there is any express provision in the Act of 1996, which
excludes the applicability of Section 14 of the Limitation Act.
On review of the provisions of the Act of 1996 this Court finds
that there is no provision in the said Act which excludes the
applicability of the provisions of Section 14 of the Limitation
Act to an application submitted under Section 34 of the said
Act. On the contrary, this Court finds that Section 43 makes the
provisions of the Limitation Act, 1963 applicable to arbitration
proceedings. The proceedings under Section 34 are for the
purpose of challenging the award whereas the proceeding referred
to under Section 43 are the original proceedings which can be
equated with a suit in a court. Hence, Section 43 incorporating
the Limitation Act will apply to the proceedings in the
arbitration as it applies to the proceedings of a suit in the
court. Sub-section (4) of Section 43, inter alia, provides that
where the court orders that an arbitral award be set aside, the
period between the commencement of the arbitration and the date
of the order of the court shall be excluded in computing the
time prescribed by the Limitation Act, 1963, for the
commencement of the proceedings with respect to the dispute so
submitted. If the period between the commencement of the
arbitration proceedings till the award is set aside by the
court, has to be excluded in computing the period of limitation
provided for any proceedings with respect to the dispute, there
is no good reason as to why it should not be held that the
provisions of Section 14 of the Limitation Act would be
applicable to an application submitted under Section 34 of the
Act of 1996, more particularly where no provision is to be found
in the Act of 1996, which excludes the applicability of Section
14 of the Limitation Act, to an application made under Section
34 of the Act. It is to be noticed that the powers under Section
34 of the Act can be exercised by the court only if the
aggrieved party makes an application. The jurisdiction under
Section 34 of the Act, cannot be exercised suo motu. The total
period of four months within which an application, for setting
aside an arbitral award, has to be made is not unusually long.
Section 34 of the Act of 1996 would be unduly oppressive, if it
is held that the provisions of Section 14 of the Limitation Act
are not applicable to it, because cases are no doubt conceivable
where an aggrieved party, despite exercise of due diligence and
good faith, is unable to make an application within a period of
four months. From the scheme and language of Section 34 of the
Act of 1996, the intention of the legislature to exclude the
applicability of Section 14 of the Limitation Act is not
manifest. It is well to remember that Section 14 of the
Limitation Act does not provide for a fresh period of limitation
but only provides for the exclusion of a certain period. Having
regard to the legislative intent, it will have to be held that
the provisions of Section 14 of the Limitation Act, 1963 would
be applicable to an application submitted under Section 34 of
the Act of 1996 for setting aside an arbitral award.”
While discussing Parson Tools, this Court held:
“25……In appeal, this Court held that (1) if the legislature in a
special statute prescribes a certain period of limitation, then
the Tribunal concerned has no jurisdiction to treat within
limitation, an application, by excluding the time spent in
prosecuting in good faith, on the analogy of Section 14(2) of
the Limitation Act, and (2) the appellate authority and the
revisional authority were not “courts” but were merely
administrative tribunals and, therefore, Section 14 of the
Limitation Act did not, in terms, apply to the proceedings
before such tribunals.
26. From the judgment of the Supreme Court in CST [(1975) 4 SCC
22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] it is evident that
essentially what weighed with the Court in holding that Section
14 of the Limitation Act was not applicable, was that the
appellate authority and the revisional authority were not
“courts”. The stark features of the revisional powers pointed
out by the Court, showed that the legislature had deliberately
excluded the application of the principles underlying Sections 5
and 14 of the Limitation Act. Here in this case, the Court is
not called upon to examine scope of revisional powers. The Court
in this case is dealing with Section 34 of the Act which confers
powers on the court of the first instance to set aside an award
rendered by an arbitrator on specified grounds. It is not the
case of the contractor that the forums before which the
Government of India undertaking had initiated proceedings for
setting aside the arbitral award are not “courts”. In view of
these glaring distinguishing features, this Court is of the
opinion that the decision rendered in CST [(1975) 4 SCC 22 :
1975 SCC (Tax) 185 : (1975) 3 SCR 743] did not decide the issue
which falls for consideration of this Court and, therefore, the
said decision cannot be construed to mean that the provisions of
Section 14 of the Limitation Act are not applicable to an
application submitted under Section 34 of the Act of 1996.”
In a separate concurring judgment Justice Raveendran
specifically held:
“44. It may be noticed at this juncture that the Schedule to the
Limitation Act prescribes the period of limitation only to
proceedings in courts and not to any proceeding before a
tribunal or quasi-judicial authority. Consequently Sections 3
and 29(2) of the Limitation Act will not apply to proceedings
before the tribunal. This means that the Limitation Act will not
apply to appeals or applications before the tribunals, unless
expressly provided.
While dealing with Parson Tools, the learned Judge held:
“56. In Parson Tools [(1975) 4 SCC 22] this Court did not hold
that Section 14(2) was excluded by reason of the wording of
Section 10(3-B) of the Sales Tax Act. This Court was considering
an appeal against the Full Bench decision of the Allahabad High
Court. Two Judges of the High Court had held that the time spent
in prosecuting the application for setting aside the order of
dismissal of appeals in default, could be excluded when
computing the period of limitation for filing a revision under
Section 10 of the said Act, by application of the principle
underlying Section 14(2) of the Limitation Act. The minority
view of the third Judge was that the revisional authority under
Section 10 of the U.P. Sales Tax Act did not act as a court but
only as a Revenue Tribunal and therefore the Limitation Act did
not apply to the proceedings before such Tribunal, and
consequently, neither Section 29(2) nor Section 14(2) of the
Limitation Act applied. The decision of the Full Bench was
challenged by the Commissioner of Sales Tax before this Court,
contending that the Limitation Act did not apply to tribunals,
and Section 14(2) of the Limitation Act was excluded in
principle or by analogy. This Court upheld the view that the
Limitation Act did not apply to tribunals, and that as the
revisional authority under Section 10 of the U.P. Sales Tax Act
was a tribunal and not a court, the Limitation Act was
inapplicable. This Court further held that the period of
pendency of proceedings before the wrong forum could not be
excluded while computing the period of limitation by applying
Section 14(2) of the Limitation Act. This Court, however, held
that by applying the principle underlying Section 14(2), the
period of pendency before the wrong forum may be considered as a
“sufficient cause” for condoning the delay, but then having
regard to Section 10(3-B), the extension on that ground could
not extend beyond six months. The observation that pendency of
proceedings of the nature contemplated by Section 14(2) of the
Limitation Act, may amount to a sufficient cause for condoning
the delay and extending the limitation and such extension cannot
be for a period in excess of the ceiling period prescribed, is
in the light of its finding that Section 14(2) of the Limitation
Act was inapplicable to revisions under Section 10(3-B) of the
U.P. Sales Tax Act. These observations cannot be interpreted as
laying down a proposition that even where Section 14(2) of the
Limitation Act in terms applied and the period spent before
wrong forum could therefore be excluded while computing the
period of limitation, the pendency before the wrong forum should
be considered only as a sufficient cause for extension of period
of limitation and therefore, subjected to the ceiling relating
to the extension of the period of limitation. As we are
concerned with a proceeding before a court to which Section
14(2) of the Limitation Act applies, the decision in Parson
Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743]
which related to a proceeding before a Tribunal to which Section
14(2) of the Limitation Act did not apply, has no application.”
27. Obviously, the ratio of Mukri Gopalan does not square with the
observations of the 3-Judge Bench in Consolidated Engineering
Enterprises. In the latter case, this Court has unequivocally held
that Parson Tools is an authority for the proposition that the
Limitation Act will not apply to quasi-judicial bodies or Tribunals.
To the extent that Mukri Gopalan is in conflict with the judgment in
the Consolidated Engineering Enterprises case, it is no longer good
law.
28. The sheet anchor in Mukri Gopalan was Section 29(2) of the
Limitation Act. Section 29(2) states:-
“29. Savings.—
(2) 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.”
A bare reading of this Section would show that the special or local
law described therein should prescribe for any suit, appeal or
application a period of limitation different from the period
prescribed by the schedule. This would necessarily mean that such
special or local law would have to lay down that the suit, appeal or
application to be instituted under it should be a suit, appeal or
application of the nature described in the schedule. We have already
held that such suits, appeals or applications as are referred to in
the schedule are only to courts and not to quasi-judicial bodies or
Tribunals. It is clear, therefore, that only when a suit, appeal or
application of the description in the schedule is to be filed in a
court under a special or local law that the provision gets attracted.
This is made even clearer by a reading of Section 29(3). Section
29(3) states:-
“29. Savings.—
(3) Save as otherwise provided in any law for the time being in
force with respect to marriage and divorce, nothing in this Act
shall apply to any suit or other proceeding under any such law.”
29. When it comes to the law of marriage and divorce, the Section
speaks not only of suits but other proceedings as well. Such
proceedings may be proceedings which are neither appeals nor
applications thus making it clear that the laws relating to marriage
and divorce, unlike the law of limitation, may contain proceedings
other than suits, appeals or applications filed in courts. This again
is an important pointer to the fact that the entirety of the
Limitation Act including Section 29(2) would apply only to the three
kinds of proceedings mentioned all of which are to be filed in courts.
30. It now remains to consider the decision of a 2-Judge Bench
reported in P. Sarathy v. State Bank of India, (2000) 5 SCC 355. This
judgment has held that an abortive proceeding before the appellate
authority under Section 41 of the Tamil Nadu Shops and Establishment
Act would attract the provisions of Section 14 of the Limitation Act
inasmuch as the appellant in this case had been prosecuting with due
diligence another civil proceeding before the appellate authority
under the Tamil Nadu Shops and Establishment Act, which appeal was
dismissed on the ground that the said Act was not applicable to
nationalized banks and that, therefore, such appeal would not be
maintainable. This Court made a distinction between “Civil Court” and
“court’ and expanded the scope of Section 14 stating that any
authority or Tribunal having the trappings of a Court would be a
“court” within the meaning of Section 14. It must be remembered that
the word “Court” refers only to a proceeding which proves to be
abortive. In this context, for Section 14 to apply, two conditions
have to be met. First, the primary proceeding must be a suit, appeal
or application filed in a Civil Court. Second, it is only when it
comes to excluding time in an abortive proceeding that the word
“Court” has been expanded to include proceedings before tribunals.
31. This judgment is in line with a large number of authorities
which have held that Section 14 should be liberally construed to
advance the cause of justice – see: Shakti Tubes Ltd. v. State of
Bihar, (2009) 1 SCC 786 and the judgments cited therein. Obviously,
the context of Section 14 would require that the term “court” be
liberally construed to include within it quasi-judicial Tribunals as
well. This is for the very good reason that the principle of Section
14 is that whenever a person bonafide prosecutes with due diligence
another proceeding which proves to be abortive because it is without
jurisdiction, or otherwise no decision could be rendered on merits,
the time taken in such proceeding ought to be excluded as otherwise
the person who has approached the Court in such proceeding would be
penalized for no fault of his own. This judgment does not further the
case of Shri Viswanathan in any way. The question that has to be
answered in this case is whether suits, appeals or applications
referred to by the Limitation Act are to be filed in courts. This has
nothing to do with “civil proceedings” referred to in Section 14 which
may be filed before other courts or authorities which ultimately do
not answer the case before them on merits but throw the case out on
some technical ground. Obviously the word “court” in Section 14 takes
its colour from the preceding words “civil proceedings”. Civil
proceedings are of many kinds and need not be confined to suits,
appeals or applications which are made only in courts stricto sensu.
This is made even more clear by the explicit language of Section 14 by
which a civil proceeding can even be a revision which may be to a
quasi-judicial tribunal under a particular statute.
Whether the Principle of Section 14 would apply to an appeal filed
under Section 128 Customs Act.
“128. Appeals to Commissioner (Appeals).—(1) Any person
aggrieved by any decision or order passed under this Act by an
officer of customs lower in rank than a Commissioner of Customs
may appeal to the Commissioner (Appeals) within [sixty days]
from the date of the communication to him of such decision or
order:
[Provided that the Commissioner (Appeals) may, if he is
satisfied that the appellant was prevented by sufficient cause
from presenting the appeal within the aforesaid period of sixty
days, allow it to be presented within a further period of thirty
days.]
[(1-A) The Commissioner (Appeals) may, if sufficient cause is
shown, at any stage of hearing of an appeal, grant time, from
time to time, to the parties or any of them and adjourn the
hearing of the appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than
three times to a party during hearing of the appeal.]
(2) Every appeal under this section shall be in such form and
shall be verified in such manner as may be specified by rules
made in this behalf.”
Prior to its amendment in 2001, the said Section read as under:-
“128. Appeals to Collector (Appeals).—(1) Any person aggrieved
by any decision or order passed under this Act by an officer of
customs lower in rank than a Collector of Customs may appeal to
the Collector (Appeals) within three months from the date of the
communication to him of such decision or order:
Provided that the Collector (Appeals) may, if he is satisfied
that the appellant was prevented by sufficient cause from
presenting the appeal within the aforesaid period of three
months, allow it to be presented within a further period of
three months.
(2) Every appeal under this section shall be in such form and
shall be verified in such manner as may be specified by rules
made in this behalf.”
We have already held that the Limitation Act including Section 14
would not apply to appeals filed before a quasi-judicial Tribunal such
as the Collector (Appeals) mentioned in Section 128 of the Customs
Act. However, this does not conclude the issue. There is authority
for the proposition that even where Section 14 may not apply, the
principles on which Section 14 is based, being principles which
advance the cause of justice, would nevertheless apply. We must never
forget, as stated in Bhudan Singh & Anr. v. Nabi Bux & Anr., (1970) 2
SCR 10, that justice and reason is at the heart of all legislation by
Parliament. This was put in very felicitous terms by Hegde,J. as
follows:
“Before considering the meaning of the word "held" in
Section 9, it is necessary to mention that it is proper to
assume that the lawmakers who are the representatives of the
people enact laws which the society considers as honest, fair
and equitable. The object of every legislation is to advance
public welfare. In other words as observed by Crawford in his
book on Statutory Constructions the entire legislative process
is influenced by considerations of justice and reason. Justice
and reason constitute the great general legislative intent in
every piece of legislation. Consequently where the suggested
construction operates harshly, ridiculously or in any other
manner contrary to prevailing conceptions of justice and reason,
in most instances, it would seem that the apparent or suggested
meaning of the statute, was not the one intended by the law-
makers. In the absence of some other indication that the harsh
or ridiculous effect was actually intended by the legislature,
there is little reason to believe that it represents the
legislative intent.”
32. This is why the principles of Section 14 were applied in J.
Kumaradasan Nair v. Iric Sohan, (2009) 12 SCC 175 to a revision
application filed before the High Court of Kerala. The Court held:
“16. The provisions contained in Sections 5 and 14 of the
Limitation Act are meant for grant of relief where a person has
committed some mistake. The provisions of Sections 5 and 14 of
the Limitation Act alike should, thus, be applied in a broad
based manner. When sub-section (2) of Section 14 of the
Limitation Act per se is not applicable, the same would not mean
that the principles akin thereto would not be applied.
Otherwise, the provisions of Section 5 of the Limitation Act
would apply. There cannot be any doubt whatsoever that the same
would be applicable to a case of this nature.
17. There cannot furthermore be any doubt whatsoever that having
regard to the definition of “suit” as contained in Section 2(l)
of the Limitation Act, a revision application will not answer
the said description. But, although the provisions of Section 14
of the Limitation Act per se are not applicable, in our opinion,
the principles thereof would be applicable for the purpose of
condonation of delay in filing an appeal or a revision
application in terms of Section 5 thereof.
18. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of any
provision of law would, by itself, be not sufficient to take
away the jurisdiction of a court if it is otherwise vested in it
in law. While exercising its power, the court will merely
consider whether it has the source to exercise such power or
not. The court will not apply the beneficent provisions like
Sections 5 and 14 of the Limitation Act in a pedantic manner.
When the provisions are meant to apply and in fact found to be
applicable to the facts and circumstances of a case, in our
opinion, there is no reason as to why the court will refuse to
apply the same only because a wrong provision has been
mentioned. In a case of this nature, sub-section (2) of Section
14 of the Limitation Act per se may not be applicable, but, as
indicated hereinbefore, the principles thereof would be
applicable for the purpose of condonation of delay in terms of
Section 5 thereof.”
The Court further quoted from Consolidated Engineering Enterprises an
instructive passage:
“21. In Consolidated Engg. Enterprises v. Irrigation
Deptt. [(2008) 7 SCC 169] this Court held: (SCC p. 181, para 22)
“22. The policy of the section is to afford protection to a
litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect cannot be
decided on merits and is dismissed. While considering the
provisions of Section 14 of the Limitation Act, proper approach
will have to be adopted and the provisions will have to be
interpreted so as to advance the cause of justice rather than
abort the proceedings. It will be well to bear in mind that an
element of mistake is inherent in the invocation of Section 14.
In fact, the section is intended to provide relief against the
bar of limitation in cases of mistaken remedy or selection of a
wrong forum. On reading Section 14 of the Act it becomes clear
that the legislature has enacted the said section to exempt a
certain period covered by a bona fide litigious activity. Upon
the words used in the section, it is not possible to sustain the
interpretation that the principle underlying the said section,
namely, that the bar of limitation should not affect a person
honestly doing his best to get his case tried on merits but
failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section 34
of the Act of 1996. The principle is clearly applicable not only
to a case in which a litigant brings his application in the
court, that is, a court having no jurisdiction to entertain it
but also where he brings the suit or the application in the
wrong court in consequence of bona fide mistake or (sic of) law
or defect of procedure. Having regard to the intention of the
legislature this Court is of the firm opinion that the equity
underlying Section 14 should be applied to its fullest extent
and time taken diligently pursuing a remedy, in a wrong court,
should be excluded. See Shakti Tubes Ltd. v. State of
Bihar [(2009) 1 SCC 786].”
33. Various provisions of the Limitation Act are based on advancing
the cause of justice. Section 6 is one such. It reads as follows:-
“6. Legal disability.—(1) Where a person entitled to institute a
suit or make an application for the execution of a decree is, at
the time from which the prescribed period is to be reckoned, a
minor or insane, or an idiot, he may institute the suit or make
the application within the same period after the disability has
ceased, as would otherwise have been allowed from the time
specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed
period is to be reckoned, affected by two such disabilities, or
where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the
application within the same period after both disabilities have
ceased, as would otherwise have been allowed from the time so
specified.
(3) Where the disability continues up to the death of that
person, his legal representative may institute the suit or make
the application within the same period after the death, as would
otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section
(3) is, at the date of the death of the person whom he
represents, affected by any such disability, the rules contained
in sub-sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability
ceases but within the period allowed to him under this section,
his legal representative may institute the suit or make the
application within the same period after the death, as would
otherwise have been available to that person had he not died.
Explanation.—For the purposes of this section, ‘minor’ includes
a child in the womb.”
On the assumption that Section 6 does not apply on the facts of a
given case, can it be said that the principles on which it is based
have no application? Suppose, in a given case, the person entitled to
institute a proceeding not governed by the Limitation Act were a
minor, a lunatic or an idiot, would he not be entitled to institute
such proceedings after such disability has ceased, for otherwise he
would be barred by the period of limitation contained in the
particular statute governing his rights. This Section again is a
pointer to the fact that courts always lean in favour of advancing the
cause of justice where a clear case is made out for so doing.
34. However, it remains to consider whether Shri Sanghi is right in
stating that Section 128 is a complete code by itself which
necessarily excludes the application of Section 14 of the Limitation
Act. For this proposition he relied strongly on Parson Tools which
has been discussed hereinabove. As has already been stated, Parson
Tools was a judgment which turned on the three features mentioned in
the said case. Unlike the U.P. Sales Tax Act, there is no provision
in the Customs Act which enables a party to invoke suo moto the
appellate power and grant relief to a person who institutes an appeal
out of time in an appropriate case. Also, Section 10 of the U.P.
Sales Tax Act dealt with the filing of a revision petition after a
first appeal had already been rejected, and not to a case of a first
appeal as provided under Section 128 of the Customs Act. Another
feature, which is of direct relevance in this case, is that for
revision petitions filed under the U.P. Sales Tax Act a sufficiently
long period of 18 months had been given beyond which it was the policy
of the legislature not to extend limitation any further. This aspect
of Parson Tools has been explained in Consolidated Engineering in some
detail by both the main judgment as well as the concurring judgment.
In the latter judgment, it has been pointed out that there is a vital
distinction between extending time and condoning delay. Like Section
34 of the Arbitration Act, Section 128 of the Customs Act is a Section
which lays down that delay cannot be condoned beyond a certain period.
Like Section 34 of the Arbitration Act, Section 128 of the Customs
Act does not lay down a long period. In these circumstances, to infer
exclusion of Section 14 or the principles contained in Section 14
would be unduly harsh and would not advance the cause of justice. It
must not be forgotten as is pointed out in the concurring judgment in
Consolidated Engineering that:
“Even when there is cause to apply Section 14, the limitation
period continues to be three months and not more, but in
computing the limitation period of three months for the
application under Section 34(1) of the AC Act, the time during
which the applicant was prosecuting such application before the
wrong court is excluded, provided the proceeding in the wrong
court was prosecuted bona fide, with due diligence. Western
Builders [(2006) 6 SCC 239] therefore lays down the correct
legal position.”
35. Merely because Parson Tools also dealt with a provision in a tax
statute does not make the ratio of the said decision apply to a
completely differently worded tax statute with a much shorter period
of limitation – Section 128 of the Customs Act. Also, the principle
of Section 14 would apply not merely in condoning delay within the
outer period prescribed for condonation but would apply de hors such
period for the reason pointed out in Consolidated Engineering above,
being the difference between exclusion of a certain period altogether
under Section 14 principles and condoning delay. As has been pointed
out in the said judgment, when a certain period is excluded by
applying the principles contained in Section 14, there is no delay to
be attributed to the appellant and the limitation period provided by
the concerned statute continues to be the stated period and not more
than the stated period. We conclude, therefore, that the principle of
Section 14 which is a principle based on advancing the cause of
justice would certainly apply to exclude time taken in prosecuting
proceedings which are bona fide and with due diligence pursued, which
ultimately end without a decision on the merits of the case.
36. Shri Sanghi also cited Ranbaxy Laboratories Ltd. v. Union of
India, (2011) 10 SCC 292. He relied upon paragraph 14 of this judgment
which reads as follows:-
“14. It is a well-settled proposition of law that a fiscal
legislation has to be construed strictly and one has to look
merely at what is said in the relevant provision; there is
nothing to be read in; nothing to be implied and there is no
room for any intendment. (See Cape Brandy
Syndicate v. IRC [(1921) 1 KB 64] and Ajmera Housing
Corpn. v.CIT [(2010) 8 SCC 739] .)”.
37. We do not see how this judgment furthers the argument of Shri
Sanghi. This is only reiteration of the classic statement of law
contained in the Cape Brandy Syndicate case. Further, the context of
this paragraph is that a literal meaning has to be given to a charging
Section in a tax statute. When it comes to machinery provisions in
tax statutes and provisions which provide for appeals and the
limitation period within which such appeals have to be filed, it is
clear that the aforesaid observations would have no application
whatsoever.
38. Shri Sanghi then referred us to Sree Balaji Nagar Residential
Assn. v. State of Tamil Nadu, (2015) 3 SCC 353 and read out paragraphs
10 and 11 from the said judgment. What was held by this Court in that
case was that Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 does not exclude any period during which a land acquisition
proceeding which might have remain stayed on account of an injunction
granted by any Court. This was so held by contrasting the language of
section 24(2) with the language of Section 19 and Section 69 of the
same Act. This judgment again would have no direct bearing on the
proposition canvassed by Shri Sanghi that Section 128 of the Customs
Act forms a complete code by itself.
What periods are to be excluded under Section 14
39. Shri Viswanathan, learned senior counsel appearing for the
appellant, placed before us a judgment of the Andhra Pradesh High
Court in which it was held that even prior to the institution of a
particular proceeding, time taken in steps taken for prosecuting such
proceedings should also be excluded. In Tirumareddi Rajarao & Ors. v.
The State of Andhra Pradesh & Ors., AIR 1965 A.P. 388, the Andhra
Pradesh High Court held that the period taken for preparatory steps
before instituting proceedings should also be excluded. It said:
“13. We may now turn to the Chambers Twentieth Century
Dictionary for the meanings of the expression "to prosecute". It
means:
To follow onwards or pursue in order to reach or accomplish; to
engage in practise to follow up to pursue, chase, to pursue by
law; to bring before a Court.
14. These meanings do not vouch the construction of the section
advanced by the learned Government Pleader. In our opinion, the
section does not render it essential that the prosecution of the
proceedings should be continued exclusively in the Court, i.e.
the actual proceeding in the Court. There is justification for
the view that it is only the actual period between the
presentation of a proceedings and the disposal of that
particular proceeding should be allowed under the sub-section.
The time during which a party has been taking the indispensable
and necessary steps preparatory to initiate the proceedings in a
court should also be regarded as the time during which he has
been prosecuting the civil proceeding.
It is also to be borne in mind that sub-section (1) makes no
reference to the pendency of the suit, appeal or other
proceeding in a Court of law. The legislature had used words of
general import and of widest amplitude. So, we do not find any
justification for reading a restriction into that sub-section
and to hold that the time during which a party was engaged in
taking steps for invoking the aid of the Court falls outside the
contemplation urged on behalf of the respondents, while the
pendency of a proceeding in a Court could be deducted in
computing the period of limitation, the time occupied in
obtaining certified copies of the judgment which is an essential
requisite for the filing of an appeal or revision in the higher
Court has to be disregarded for purposes of S. 14. We do not
think that the legislature would have contemplated such a
situation. It would certainly result in an anomaly to hold that
the time covered by taking the steps absolutely necessary for
initiating proceedings in a Court should be included in
calculating the period of limitation while the time during which
a former suit or application was pending in a Court should be
excluded. In our considered judgment the section does not make
any distinction between the steps which a litigant has to take
to initiate proceedings in a Court and the actual pendency of
those proceedings in the Court.”
40. In Mst. Duliyabai & Ors. v. Vilayatali & Ors., AIR 1959 MP 271,
a Division Bench of the High Court held:-
“What would be the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding in a
Court of appeal? Certainly the time requisite for obtaining the
certified copies under Section 12 of the Limitation Act would be
included within the meaning of the section. Also the limitation
prescribed for the filing of an appeal would be included, if the
appeal be filed on the last day of limitation.
But if the appeal be filed earlier, the time from the date of
the order impugned upto the actual date of filing of the appeal
would certainly be the time during which the plaintiff can be
said to be prosecuting another civil proceeding in a court of
appeal. We are unable to endorse the view of the learned trial
Judge on this point. A Division Bench of this Court consisting
of Sir Gilbert Stone, C. J. and Niyogi, J., in the case of
Kasturchand v. Wazir Begum' : (AIR 1937 Nag 1) : ILR (1937) Nag
291, held with reference to Article 11 (1) of the Limitation Act
as follows:
"Then it is said that the plaintiff is out of time owing to the
operation of Article 11 (1) of the Limitation Act which, in the
case of a suit by a person against whom an order is passed on
his objection in execution proceedings, fixes one year. The
dates are as follows: the objection order was passed on 5-3-
1928. The plaint was presented in one Court on 15-9-1928, of
course in time. That was returned by that Court on 14-12-1928,
for presentation to what that Court held to be the proper Court.
The plaintiff challenging the correctness of that order appealed
on 6-2-1929 and the appeal was dismissed on 2-9-1929, and the
plaint was presented to the Court as decided by die first Court,
on 25-11-1929. In our opinion the plaintiff has been litigating
the matter in a Court which she bona fide believed to be the
correct tribunal, believing, to the extent of incurring costs of
an appeal against the decision that it was not the correct
tribunal, for something like 10 months.
Those 10 months must be taken into account in considering the
period that has elapsed between the date of suit and the date
when the plaint was eventually filed in the correct Court, and
if this is so taken into account the time that has expired is
less than a year. The limitation point, therefore, in our
opinion, fails."
In the case of Abdul Sattar v. Abdul Husan, AIR 1936 Cal 400,
the plaintiffs had applied for execution of their decree. The
judgment-debtors raised objections to the execution on the
ground of adjustment of the decree. The question of adjustment
was fought in appeals upto the highest Court. Ultimately it was
decided against the plaintiffs by the final appellate Court. The
learned Judges constituting the Division Bench held that the
plaintiffs were entitled to exclude the entire period from the
date of the order recording the adjustment upto the date of the
final order of the highest appellate Court. We feel that this
interpretation of Section 14 is in consonance with the wording
of the Section. Therefore, differing from the learned trial
Judge, we hold that the appellants were entitled to exclude the
period from 18-9-1948 to 15-12-1948.”
41. The language of Section 14, construed in the light of the object
for which the provision has been made, lends itself to such an
interpretation. The object of Section 14 is that if its conditions
are otherwise met, the plaintiff/applicant should be put in the same
position as he was when he started an abortive proceeding. What is
necessary is the absence of negligence or inaction. So long as the
plaintiff or applicant is bonafide pursuing a legal remedy which turns
out to be abortive, the time beginning from the date of the cause of
action of an appellate proceeding is to be excluded if such appellate
proceeding is from an order in an original proceeding instituted
without jurisdiction or which has not resulted in an order on the
merits of the case. If this were not so, anomalous results would
follow. Take the case of a plaintiff or applicant who has succeeded
at the first stage of what turns out to be an abortive proceeding.
Assume that, on a given state of facts, a defendant – appellant or
other appellant takes six months more than the prescribed period for
filing an appeal. The delay in filing the appeal is condoned. Under
explanation (b) of Section 14, the plaintiff or the applicant
resisting such an appeal shall be deemed to be prosecuting a
proceeding. If the six month period together with the original period
for filing the appeal is not to be excluded under Section 14, the
plaintiff/applicant would not get a hearing on merits for no fault of
his, as he in the example given is not the appellant. Clearly
therefore, in such a case, the entire period of nine months ought to
be excluded. If this is so for an appellate proceeding, it ought to
be so for an original proceeding as well with this difference that the
time already taken to file the original proceeding, i.e. the time
prior to institution of the original proceeding cannot be excluded.
Take a case where the limitation period for the original proceeding is
six months. The plaintiff/applicant files such a proceeding on the
ninetieth day i.e. after three months are over. The said proceeding
turns out to be abortive after it has gone through a chequered career
in the appeal courts. The same plaintiff/applicant now files a fresh
proceeding before a court of first instance having the necessary
jurisdiction. So long as the said proceeding is filed within the
remaining three month period, Section 14 will apply to exclude the
entire time taken starting from the ninety first day till the final
appeal is ultimately dismissed. This example also goes to show that
the expression “the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding” needs to be
construed in a manner which advances the object sought to be achieved,
thereby advancing the cause of justice.
42. Section 14 has been interpreted by this Court extremely liberally
inasmuch as it is a provision which furthers the cause of justice.
Thus, in Union of India v. West Coast Paper Mills Ltd., (2004) 3 SCC
458, this Court held:
“14. … In the submission of the learned Senior Counsel, filing
of civil writ petition claiming money relief cannot be said to
be a proceeding instituted in good faith and secondly, dismissal
of writ petition on the ground that it was not an appropriate
remedy for seeking money relief cannot be said to be ‘defect of
jurisdiction or other cause of a like nature’ within the meaning
of Section 14 of the Limitation Act. It is true that the writ
petition was not dismissed by the High Court on the ground of
defect of jurisdiction. However, Section 14 of the Limitation
Act is wide in its application, inasmuch as it is not confined
in its applicability only to cases of defect of jurisdiction but
it is applicable also to cases where the prior proceedings have
failed on account of other causes of like nature. The expression
‘other cause of like nature’ came up for the consideration of
this Court in Roshanlal Kuthalia v. R.B. Mohan Singh
Oberoi[(1975) 4 SCC 628] and it was held that Section 14 of the
Limitation Act is wide enough to cover such cases where the
defects are not merely jurisdictional strictly so called but
others more or less neighbours to such deficiencies. Any
circumstance, legal or factual, which inhibits entertainment or
consideration by the court of the dispute on the merits comes
within the scope of the section and a liberal touch must inform
the interpretation of the Limitation Act which deprives the
remedy of one who has a right.”
Similarly, in India Electric Works Ltd. v. James Mantosh, (1971)
1 SCC 24, this Court held:
“7. It is well settled that although all questions of
limitation must be decided by the provisions of the Act and the
courts cannot travel beyond them the words ‘or other cause of a
like nature’ must be construed liberally. Some clue is furnished
with regard to the intention of the legislature by Explanation
III in Section 14(2). Before the enactment of the Act in 1908,
there was a conflict amongst the High Courts on the question
whether misjoinder and non-joinder were defects which were
covered by the words ‘or other cause of a like nature’. It was
to set at rest this conflict that Explanation III was added. An
extended meaning was thus given to these words. Strictly
speaking misjoinder or non-joinder of parties could hardly be
regarded as a defect of jurisdiction or something similar or
analogous to it.”
43. As has been already noticed, Sarathy’s case i.e. (2000) 5 SCC
355 has also held that the court referred to in Section 14 would
include a quasi-judicial tribunal. There appears to be no reason for
limiting the reach of the expression “prosecuting with due diligence”
to institution of a proceeding alone and not to the date on which the
cause of action for such proceeding might arise in the case of
appellate or revisional proceedings from original proceedings which
prove to be abortive. Explanation (a) to Section 14 was only meant
to clarify that the day on which a proceeding is instituted and the
day on which it ends are also to be counted for the purposes of
Section 14. This does not lead to the conclusion that the period from
the cause of action to the institution of such proceeding should be
left out. In fact, as has been noticed above, the explanation expands
the scope of Section 14 by liberalizing it. Thus, under explanation
(b) a person resisting an appeal is also deemed to be prosecuting a
proceeding. But for explanation (b), on a literal reading of Section
14, if a person has won in the first round of litigation and an appeal
is filed by his opponent, the period of such appeal would not be
liable to be excluded under the Section, leading to an absurd result.
That is why a plaintiff or an applicant resisting an appeal filed by a
defendant shall also be deemed to prosecute a proceeding so that the
time taken in the appeal can also be the subject matter of exclusion
under Section 14. Equally, explanation (c) which deems misjoinder of
parties or a cause of action to be a cause of a like nature with
defect of jurisdiction, expands the scope of the section. We have
already noticed that the India Electric Works Ltd. judgment has held
that strictly speaking misjoinder of parties or of causes of action
can hardly be regarded as a defect of jurisdiction or something
similar to it. Therefore properly construed, explanation (a) also
confers a benefit and does not by a side wind seek to take away any
other benefit that a purposive reading of Section 14 might give. We,
therefore, agree with the decision of the Madhya Pradesh High Court
that the period from the cause of action till the institution of
appellate or revisional proceedings from original proceedings which
prove to be abortive are also liable to exclusion under the Section.
The view of the Andhra Pradesh High Court is too broadly stated. The
period prior to institution of the initiation of any abortive
proceeding cannot be excluded for the simple reason that Section 14
does not enable a litigant to get a benefit beyond what is
contemplated by the Section - that is to put the litigant in the same
position as if the abortive proceeding had never taken place.
What applies to the facts of this case: the limitation period in
Section 128 pre-amendment or post amendment
44. Shri A.K. Sanghi, learned senior counsel appearing on behalf of
the revenue, has strongly contended before us that the present appeal
must attract the limitation period as on the date of its filing. That
being so, it is clear that the present appeal having been filed before
CESTAT only on 23.5.2003, it is Section 128 post amendment that would
apply and therefore the maximum period available to the appellant
would be 60 plus 30 days. Even if time taken in the abortive
proceedings is to be excluded, the appeal filed will be out of time
being beyond the aforesaid period.
45. It is settled law that periods of limitation are procedural in
nature and would ordinarily be applied retrospectively. This,
however, is subject to a rider. In New India Insurance Co. Ltd. v.
Shanti Misra, (1975) 2 SCC 840, this Court held:
“5. On the plain language of Sections 110-A and 110-F there
should be no difficulty in taking the view that the change in
law was merely a change of forum i.e. a change of adjectival or
procedural law and not of substantive law. It is a well-
established proposition that such a change of law operates
retrospectively and the person has to go to the new forum even
if his cause of action or right of action accrued prior to the
change of forum. He will have a vested right of action but not a
vested right of forum. If by express words the new forum is made
available only to causes of action arising after the creation of
the forum, then the retrospective operation of the law is taken
away. Otherwise the general rule is to make it retrospective.”
46. In answering a question which arose under Section 110A of the
Motor Vehicles Act, this Court held:
“7.....“(1) Time for the purpose of filing the application under
Section 110-A did not start running before the constitution of
the tribunal. Time had started running for the filing of the
suit but before it had expired the forum was changed. And for
the purpose of the changed forum, time could not be deemed to
have started running before a remedy of going to the new forum
is made available.
(2) Even though by and large the law of limitation has been held
to be a procedural law, there are exceptions to this principle.
Generally the law of limitation which is in vogue on the date of
the commencement of the action governs it. But there are certain
exceptions to this principle. The new law of limitation
providing a longer period cannot revive a dead remedy. Nor can
it suddenly extinguish a vested right of action by providing for
a shorter period of limitation.”
47. This statement of the law was referred to with approval in Vinod
Gurudas Raikar v. National Insurance Co. Ltd., (1991) 4 SCC 333 as
follows:-
“7. It is true that the appellant earlier could file an
application even more than six months after the expiry of the
period of limitation, but can this be treated to be a right
which the appellant had acquired. The answer is in the negative.
The claim to compensation which the appellant was entitled to,
by reason of the accident was certainly enforceable as a right.
So far the period of limitation for commencing a legal
proceeding is concerned, it is adjectival in nature, and has to
be governed by the new Act — subject to two conditions. If under
the repealing Act the remedy suddenly stands barred as a result
of a shorter period of limitation, the same cannot be held to
govern the case, otherwise the result will be to deprive the
suitor of an accrued right. The second exception is where the
new enactment leaves the claimant with such a short period for
commencing the legal proceeding so as to make it unpractical for
him to avail of the remedy. This principle has been followed by
this Court in many cases and by way of illustration we would
like to mention New India Insurance Co. Ltd. v.Smt Shanti
Misra [(1975) 2 SCC 840 : (1976) 2 SCR 266] . The husband of the
respondent in that case died in an accident in 1966. A period of
two years was available to the respondent for instituting a suit
for recovery of damages. In March, 1967 the Claims Tribunal
under Section 110 of the Motor Vehicles Act, 1939 was
constituted, barring the jurisdiction of the civil court and
prescribed 60 days as the period of limitation. The respondent
filed the application in July, 1967. It was held that not having
filed a suit before March, 1967 the only remedy of the
respondent was by way of an application before the Tribunal. So
far the period of limitation was concerned, it was observed that
a new law of limitation providing for a shorter period cannot
certainly extinguish a vested right of action. In view of the
change of the law it was held that the application could be
filed within a reasonable time after the constitution of the
Tribunal; and, that the time of about four months taken by the
respondent in approaching the Tribunal after its constitution,
could be held to be either reasonable time or the delay of about
two months could be condoned under the proviso to Section 110-
A(3).”
Both these judgments were referred to and followed in Union of
India v. Harnam Singh, (1993) 2 SCC 162, see paragraph 12.
48. The aforesaid principle is also contained in Section 30(a) of
the Limitation Act, 1963.
“30. Provision for suits, etc., for which the prescribed
period is shorter than the period prescribed by the Indian
Limitation Act, 1908.—Notwithstanding anything contained in this
Act,—
(a) any suit for which the period of limitation is shorter than
the period of limitation prescribed by the Indian Limitation
Act, 1908, may be instituted within a period of [seven years]
next after the commencement of this Act or within the period
prescribed for such suit by the Indian Limitation Act, 1908,
whichever period expires earlier:”
49. The reason for the said principle is not far to seek. Though
periods of limitation, being procedural law, are to be applied
retrospectively, yet if a shorter period of limitation is provided by
a later amendment to a statute, such period would render the vested
right of action contained in the statute nugatory as such right of
action would now become time barred under the amended provision.
50. This aspect of the matter is brought out rather well in
Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC 739 as
follows:
“22. Law is well settled that the manner in which the appeal has
to be filed, its form and the period within which the same has
to be filed are matters of procedure, while the right conferred
on a party to file an appeal is a substantive right. The
question is, while dealing with a belated appeal under Section
19(2) of FEMA, the application for condonation of delay has to
be dealt with under the first proviso to sub-section (2) of
Section 52 of FERA or under the proviso to sub-section (2) of
Section 19 of FEMA. For answering that question it is necessary
to examine the law on the point.
Substantive and procedural law
23. Substantive law refers to a body of rules that creates,
defines and regulates rights and liabilities. Right conferred on
a party to prefer an appeal against an order is a substantive
right conferred by a statute which remains unaffected by
subsequent changes in law, unless modified expressly or by
necessary implication. Procedural law establishes a mechanism
for determining those rights and liabilities and a machinery for
enforcing them. Right of appeal being a substantive right always
acts prospectively. It is trite law that every statute is
prospective unless it is expressly or by necessary implication
made to have retrospective operation.
24. Right of appeal may be a substantive right but the procedure
for filing the appeal including the period of limitation cannot
be called a substantive right, and an aggrieved person cannot
claim any vested right claiming that he should be governed by
the old provision pertaining to period of limitation. Procedural
law is retrospective meaning thereby that it will apply even to
acts or transactions under the repealed Act.
25. Law on the subject has also been elaborately dealt with by
this Court in various decisions and reference may be made to a
few of those decisions. This Court in Garikapati Veeraya v. N.
Subbiah Choudhry [AIR 1957 SC 540] , New India Insurance Co.
Ltd. v. Shanti Misra [(1975) 2 SCC 840], Hitendra Vishnu
Thakur v. State of Maharashtra [(1994) 4 SCC 602 : 1994 SCC
(Cri) 1087] , Maharaja Chintamani Saran Nath Shahdeo v. State of
Bihar [(1999) 8 SCC 16] and Shyam Sunder v. Ram Kumar [(2001) 8
SCC 24] , has elaborately discussed the scope and ambit of an
amending legislation and its retrospectivity and held that every
litigant has a vested right in substantive law but no such right
exists in procedural law. This Court has held that the law
relating to forum and limitation is procedural in nature whereas
law relating to right of appeal even though remedial is
substantive in nature.
26. Therefore, unless the language used plainly manifests in
express terms or by necessary implication a contrary intention a
statute divesting vested rights is to be construed as
prospective, a statute merely procedural is to be construed as
retrospective and a statute which while procedural in its
character, affects vested rights adversely is to be construed as
prospective.”
51. This judgment was strongly relied upon by Shri A.K. Sanghi for
the proposition that the law in force on the date of the institution
of an appeal, irrespective of the date of accrual of the cause of
action for filing an appeal, will govern the period of limitation.
Ordinarily, this may well be the case. As has been noticed above,
periods of limitation being procedural in nature would apply
retrospectively. On the facts in the judgment in the Thirumalai case,
it was held that the repealed provision contained in the Foreign
Exchange Regulation Act, namely, Section 52 would not apply to an
appeal filed long after 1.6.2000 when the Foreign Exchange Management
Act came into force, repealing the Foreign Exchange Regulation Act.
It is significant to note that Section 52(2) of the repealed Act
provided a period of limitation of 45 plus 45 days and no more whereas
Section 19(2) of FEMA provided for 45 days with no cap thereafter
provided sufficient cause to condone delay is shown. On facts, in
that case, the appeal was held to be properly instituted under Section
19, which as has been stated earlier, had no cap to condonation of
delay. It was, therefore, held that the Appellate Tribunal in that
case could entertain the appeal even after the period of 90 days had
expired provided sufficient cause for the delay was made out.
52. The present case stands on a slightly different footing. The
abortive appeal had been filed against orders passed in March- April,
1992. The present appeal was filed under Section 128, which Section
continues on the statute book till date. Before its amendment in 2001,
it provided a maximum period of 180 days within which an appeal could
be filed. Time began to run on 3.4.1992 under Section 128 pre
amendment when the appellant received the order of the Superintendent
of Customs intimating it about an order passed by the Collector of
Customs on 25.3.1992. Under Section 128 as it then stood a person
aggrieved by a decision or order passed by a Superintendent of Customs
could appeal to the Collector (Appeals) within three months from the
date of communication to him of such decision or order. On the
principles contained in Section 14 of the Limitation Act the time
taken in prosecuting an abortive proceeding would have to be excluded
as the appellant was prosecuting bona fide with due diligence the
appeal before CEGAT which was allowed in its favour by CEGAT on
23.6.1998. The Department preferred an appeal against the said order
sometime in the year 2000 which appeal was decided in their favour by
this court only on 12.3.2003 by which CEGAT’s order was set aside on
the ground that CEGAT had no jurisdiction to entertain such appeal.
The time taken from 12.3.2003 to 23.5.2003, on which date the present
appeal was filed before the Commissioner (Appeals) would be within the
period of 180 days provided by the pre amended Section 128, when added
to the time taken between 3.4.1992 and 22.6.1992. The amended Section
128 has now reduced this period, with effect from 2001, to 60 days
plus 30 days, which is 90 days. The order that is challenged in the
present case was passed before 2001. The right of appeal within a
period of 180 days (which includes the discretionary period of 90
days) from the date of the said order was a right which vested in the
appellant. A shadow was cast by the abortive appeal from 1992 right
upto 2003. This shadow was lifted when it became clear that the
proceeding filed in1992 was a proceeding before the wrong forum. The
vested right of appeal within the period of 180 days had not yet got
over. Upon the lifting of the shadow, a certain residuary period
within which a proper appeal could be filed still remained. That
period would continue to be within the period of 180 days
notwithstanding the amendment made in 2001 as otherwise the right to
appeal itself would vanish given the shorter period of limitation
provided by Section 128 after 2001.
53. We, therefore, set aside the order dated 25.2.2004 and remand the
case to CESTAT for a decision on merits. The appeal is allowed in the
aforesaid terms. There will be no order as to costs.
…..………………J.
(A.K. Sikri)
…..………………J.
(R.F. Nariman)
New Delhi;
April 23, 2015.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4367 OF 2004
M.P. STEEL CORPORATION …APPELLANT
VERSUS
COMMISSIONER OF CENTRAL
EXCISE ...RESPONDENT
J U D G M E N T
R.F. Nariman, J.
1. The facts giving rise to the present appeal are as follows.
The appellant is engaged in ship breaking activity at Alang Ship
Breaking Yard. The appellant imported a vessel, namely, M.V. Olinda,
for the purpose of breaking the same, and filed a Bill of Entry when
the vessel was imported on 7.2.1992. It declared in the said Bill of
Entry that the Light Displacement Tonnage of the vessel was 7009
metric tons. On 19.2.1992, the appellant was informed by the
Superintendent of Customs and Central Excise Alang that the Light
Displacement Tonnage of the ship is actually 8570 tons and that
customs duty was to be levied on this tonnage. On 3.3.1992, the
appellant cleared the vessel on payment of customs duty on the basis
of 7009 metric tons and executed a bank guarantee for Rs.19,90,275/-
being the difference in customs duty on 1561 metric tons. On
25.3.1992, the Collector of Customs, Rajkot, directed the Assistant
Collector, Bhavnagar to encash the bank guarantee furnished by the
appellant. On 2.4.1992, the Superintendent of Customs and Central
Excise sent a letter to the appellant communicating the decision of
the Collector, as aforesaid. The bank guarantee was duly encashed on
3.4.1992. After protesting against the said illegal action of the
Department in encashing the bank guarantee, the appellant preferred an
appeal against the Superintendent’s letter dated 2.4.1992 and the
Collector’s order dated 25.3.1992 before CEGAT. On 23.6.1998, the
Appellate Tribunal allowed the appeal and set aside the order of the
Collector dated 25.3.1992. In the year 2000, the Department preferred
an appeal before this Court. On 12.3.2003, this Court allowed the
appeal holding:
“This appeal is against a judgment dated 23.6.1998 passed
by the Customs, Excise And Gold (Control) Appellate Tribunal,
West Regional Bench at Mumbai.
Facts briefly stated are that the respondent filed a Bill
of Entry in respect of ship M.V. Olinda imported by them for
purposes of breaking. The respondent showed the light
displacement tonnage (LDT) as 7009 metric tons. This
declaration was not accepted by the Superintendent of Customs
and Central Excise. The respondent, thus, approached the
Assistant Collector. The question was how LDT was to be
calculated. It appears that between the Assistant Collector and
the Collector there was some internal correspondence on this
aspect. The Collector took a policy decision on how LDT was to
be calculated. The Collector conveyed this decision to the
Assistant Collector by his letter dated 25.3.1992. Pursuant
thereto the Superintendent of Customs and Central Excise passed
an order dated 2nd April, 1992 in respect of vessel M.V.
“Olinda”. Of course the order dated 2nd April, 1992 is based on
the decision of the Collector. However, the order remains that
of the Superintendent of Customs and Central Excise.
The respondent filed an appeal directly before CEGAT.
CEGAT has disposed of this appeal by the impugned order. CEGAT
negatived a contention that the appeal was not maintainable
before them on the basis that the Superintendent’s order is
nothing more than a communication of the order passed by the
Collector (Appeals). CEGAT held that the appeal was in fact
against the Collector’s order.
In our view, the reasoning of CEGAT cannot be sustained.
The decision taken by the Collector was not taken in his
capacity as Collector (Appeals). Also the order by which
respondent is aggrieved is the order passed by the
Superintendent. An appeal against that order has to be filed
before the Commissioner (Appeals) under Section 128. By virtue
of Section 129-A, CEGAT has no jurisdiction to entertain such an
appeal.
It is clear that the impugned order is passed without any
jurisdiction. Therefore, it cannot be sustained. We, thus, set
aside the order. The appeal is accordingly allowed. There will
be no order as to costs.
We clarify that we have not gone into the merits of the
matter and that it will be open to the respondent to adopt such
remedy as they may be advised, if in law they are entitled to do
so.”
2. After this judgment, on 23.5.2003, the appellant filed an appeal
before the Commissioner (Appeals) against the order passed by the
Superintendent, Customs dated 2.4.1992. On 4.8.2003, an application
to condone delay in filing the appeal was made in the following terms:
“As appeal against the order of the Supdt. of Customs was
filed by us within 60 days of the receipt of the certified true
copy of the judgment of the Hon’ble Supreme Court. It is our
respectful submission that since the appeal was filed by us
before the correct forum with due dispatch after receipt of the
Supreme Court’s judgment, there has been no delay in filing the
appeal. It is well settled now that the time taken for pursuing
a remedy before another appellate Forum is to be excluded for
the purpose of computing the period for filing an appeal.
(Union Carbide India Ltd. Vs. CC 1998 (77) ECR 376, Karnataka
Minerals & Mfg. Co. Ltd. Vs. CCE 1998 (101) ELT 627).”
3. By an order dated 27.10.2003, the Commissioner of Customs
(Appeals) dismissed the appeal on the ground of delay stating that the
appeal had been filed way beyond the period of 60 days plus 30 days
provided for in Section 128 of the Customs Act. Against this order,
CESTAT dismissed the appeal of the appellant stating that the
Commissioner (Appeals) had no power to condone delay beyond the period
specified in Section 128.
4. Shri Viswanathan, learned senior advocate appearing on behalf of
the appellant argued before us that the entire period starting from
25.3.1992 up till 12.3.2003 ought to be excluded by applying Section
14 of the Limitation Act. According to him, Section 14 of the
Limitation Act would apply to exclude this period from the period of
90 days allowed in filing an appeal filed to the Collector (Appeals)
inasmuch as vide Section 29 (2) of the Limitation Act Section 14 of
the Limitation Act would also apply to Tribunals set up under special
or local Acts. According to him, the entire period with which he
was prosecuting, with due diligence, the abortive appeal filed before
CEGAT should be excluded, which would include the period even prior to
22.6.1992 when the abortive appeal was filed. As an alternative
submission, on the assumption that Section 14 applied only to Courts
and not to Tribunals, he submitted that the principle of Section 14
would then apply. According to him, Section 128 of the Customs Act
before its amendment in 2001 would be attracted on the facts of this
case giving him a period of 90 days plus an extended period of a
further period of 90 days within which the present appeal could be
filed. This being the case, on an application of Section 14, the
appeal would be filed with no delay at all even if the period from
3.4.1992 to 22.6.1992 and 12.3.2003 to 23.5.2003 is to be taken into
account, as that would be less than 180 days given to file the appeal
under the old Section 128. He cited a number of authorities which we
will deal with in the course of this judgment in support of all the
aforesaid propositions.
5. Shri A.K. Sanghi, learned senior advocate appearing on behalf of
the Department argued that Section 128 of the Customs Act excluded the
application of Section 14 of the Limitation Act in that the scheme of
the Section is that only a limited period should be given to an
assessee beyond which the appeal would become time barred. In the
present case, Section 128 as amended post 2001 would apply to the
facts of this case and on the appellant’s own showing the appeal is
out of time by eleven and a half years. Section 128 only gives the
appellant 60 days plus another 30 days which have long gone. He also
argued that Section 14 of the Limitation Act would not apply to
Tribunals but only to Courts, and the Collector (Appeals) was at best
a quasi-judicial Tribunal. Further, according to him, no question of
any principle of section 14 would get attracted. In fact, according
to him, there is no pleading qua Section 14 at all – the only pleading
is for condonation of delay and not for exclusion of time. Section 14
requires that five necessary ingredients must be satisfied on facts
before it can be attracted. The appellant has neither pleaded nor
proved any of these ingredients. He also cited a number of
authorities which we will refer to in the course of this judgment.
Ingredients of Section 14.
Section 14 of the Limitation Act reads as follows:
“14. Exclusion of time of proceeding bona fide in court
without jurisdiction.—(1) In computing the period of limitation
for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether
in a court of first instance or of appeal or revision, against
the defendant shall be excluded, where the proceeding relates to
the same matter in issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause of a
like nature, is unable to entertain it.
(2) In computing the period of limitation for any
application, the time during which the applicant has been
prosecuting with due diligence another civil proceeding, whether
in a court of first instance or of appeal or revision, against
the same party for the same relief shall be excluded, where such
proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is
unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order
XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the
provisions of sub-section (1) shall apply in relation to a fresh
suit instituted on permission granted by the court under Rule 1
of that Order, where such permission is granted on the ground
that the first suit must fail by reason of a defect in the
jurisdiction of the court or other cause of a like nature.
Explanation.—For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding
was pending, the day on which that proceeding was instituted and
the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed
to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to
be a cause of a like nature with defect of jurisdiction.”
6. Shri A.K. Sanghi, learned senior counsel appearing on behalf of
the Department has stated that at no point of time has the appellant
taken up a plea based on Section 14. Neither has the appellant met
with any of the five conditions set out in paragraph 21 of
Consolidated Engg. Enterprises v. Principal secy., Irrigation Deptt.,
(2008) 7 SCC 169, which reads as follows:-
“21. Section 14 of the Limitation Act deals with exclusion of
time of proceeding bona fide in a court without jurisdiction. On
analysis of the said section, it becomes evident that the
following conditions must be satisfied before Section 14 can be
pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence
and in good faith;
(3) The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate
to the same matter in issue and;
(5) Both the proceedings are in a court.”
7. Technically speaking, Shri A.K. Sanghi, may be correct.
However, in an application for condonation of delay the appellant
pointed out that they were pursuing a remedy before another appellate
forum which ought to be excluded. We deem this averment sufficient
for the appellant to contend that Section 14 of the Limitation Act or
principles laid down under it would be attracted to the facts of this
case.
We might also point out that conditions 1 to 4 mentioned in the
Consolidated Engineering case have, in fact, been met by the
appellant. It is clear that both the prior and subsequent proceedings
are civil proceedings prosecuted by the same party. The prior
proceeding had been prosecuted with due diligence and in good faith,
as has been explained in Consolidated Engineering itself. These
phrases only mean that the party who invokes Section 14 should not be
guilty of negligence, lapse or inaction. Further, there should be no
pretended mistake intentionally made with a
view to delaying the proceedings or harassing the opposite party. On
the facts of this case, as the earlier Supreme Court order dated
12.3.2003 itself points out, there was some confusion as to whether
what was appealed against was the Superintendent’s order or the
Collector’s order. The appellant bona fide believed that it was the
Collector’s order which was appealed against and hence an appeal to
CEGAT would be maintainable. This contention, however, ran into rough
weather in this Court. Further, the time taken between 3.4.1992 and
22.6.1992 to file an appeal cannot be said to be inordinately long.
Thus, neither was there any negligence, lapse or inaction on facts nor
did the appellant delay proceedings to harass the Department by
pretending that there was a mistake. Condition (3) was also directly
met – this Court in the order dated 12.3.2003 set aside CEGAT’s order
on the ground that it was without jurisdiction. It is indisputable
that the earlier proceeding and the later proceeding relate to the
same matter in issue and thus condition 4 is also met. Condition 5,
however, has not been met as both the proceedings are before a quasi-
judicial Tribunal and not in a Court. This, however, is not fatal to
the present proceeding as what is being held by us in this judgment is
that despite the fact that Section 14 of the Limitation Act may not
apply, yet the principles of Section 14 will get attracted to the
facts of the present case. It is in this way that we now proceed to
consider the law on the subject.
Whether the Limitation Act applies only to Courts and not to Tribunals
8. A perusal of the Limitation Act, 1963 would show that the bar of
limitation contained in the Schedule to the Act applies to suits, appeals,
and applications. “Suit” is defined in Section 2(l) as not including an
appeal or an application. The word “Court” is not defined under the Act.
However, it appears in a number of its provisions (See: Sections
4,5,13,17(2),21). A perusal of the Schedule would show that it is divided
into three divisions. The first division concerns itself with suits.
Articles 1 to 113 all deal with “suits”.
9. Sections 2(a),(e) and (i) are material in that they define what is
meant by an applicant, a plaintiff and a defendant.
“2. Definitions.—In this Act, unless the context otherwise
requires,—
(a) “applicant” includes—
(i) a petitioner;
(ii) any person from or through whom an
applicant derives his right to apply;
(iii) any person whose estate is represented by
the applicant as executor, administrator or
other representative;
(e) “defendant” includes—
(i) any person from or through whom a defendant
derives his liability to be sued;
(ii) any person whose estate is represented by
the defendant as executor, administrator or
other representative;
(i) “plaintiff” includes—
(i) any person from or through whom a plaintiff
derives his right to sue;
(ii) any person whose estate is represented by
the plaintiff as executor, administrator or
other representative;”
10. Section 3(2) which is material states as follows:
“3(2) For the purposes of this Act-
a) A suit is instituted-
(i)In an ordinary case, when the plaint
is presented to the proper officer;
(ii)In the case of a pauper, when his
application for leave to sue as a pauper
is made; and
(iii)In the case of a claim against a
company which is being wound up by the
court, when the claimant first sends in
his claim to the official liquidator;
(b) Any claim by way of a set off or a counter
claim, shall be treated as a separate suit and
shall be deemed to have been instituted –
(i)in the case of a set off, on the same
date as the suit in which the set off is
pleaded;
(ii)in the case of a counter claim, on
the date on which the counter claim is
made in court;
(c)an application by notice of motion in a
High Court is made when the application is
presented to the proper officer of that
court.”
11. A perusal of Section 3(2) shows that “suits” are understood as
actions begun in courts of law established under the Constitution of India.
12. In the Schedule, the second division concerns itself with appeals.
These appeals under Articles 114 to 117, are either under the Civil
Procedure Code, the Criminal Procedure Code, or intra-court appeals so far
as the High Courts are concerned. These appeals again are only to “Courts”
established under the Constitution.
13. Equally, in the third division, all applications that are referred to
are under Articles 118 to 137 only to “Courts”, either under the Civil
Procedure Code or under other enactments.
14. Sections 13, 21 and Articles 124, 130 and 131 of the Limitation
Act are again important in understanding what is meant by the
expression “Court”. They are set out below:
“13. Exclusion of time in cases where leave to sue or appeal as
a pauper is applied for.—In computing the period of limitation
prescribed for any suit or appeal in any case where an
application for leave to sue or appeal as a pauper has been made
and rejected, the time during which the applicant has been
prosecuting in good faith his application for such leave shall
be excluded, and the court may, on payment of the court fees
prescribed for such suit or appeal, treat the suit or appeal as
having the same force and effect as if the court fees had been
paid in the first instance.
21. Effect of substituting or adding new plaintiff or
defendant.—(1) Where after the institution of a suit, a new
plaintiff or defendant is substituted or added, the suit shall,
as regards him, be deemed to have been instituted when he was so
made a party:
Provided that where the court is satisfied that the omission
to include a new plaintiff or defendant was due to a mistake
made in good faith it may direct that the suit as regards such
plaintiff or defendant shall be deemed to have been instituted
on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a
party is added or substituted owing to assignment or devolution
of any interest during the pendency of a suit or where a
plaintiff is made a defendant or a defendant is made a
plaintiff.
Schedule
|124. |For a review of |Thirty |The date of|
| |judgment by a court|days |the decree |
| |other than the | |or order. |
| |Supreme Court. | | |
|130. |For leave to appeal| |
| |as a pauper -- | |
| |(a) to the High |Sixty days|The date of|
| |Court; | |decree |
| | | |appealed |
| | | |from. |
| |(b) to any other |Thirty |The date of|
| |court. |days |decree |
| | | |appealed |
| | | |from. |
|131. |To any court for |Ninety |The date of|
| |the exercise of its|days |the decree |
| |powers of revision | |or order or|
| |under the Code of | |sentence |
| |Civil Procedure, | |sought to |
| |1908 (5 of 1908), | |be revised.|
| |or the Code of | | |
| |Criminal Procedure,| | |
| |1898 (5 of 1898). | | |
It will be seen that suits and appeals that are covered by the
Limitation Act are so covered provided court fees prescribed for such
suits or appeals are paid. Under Section 13, set out hereinabove,
this becomes clear. That is why time is excluded in cases where leave
to file a suit or an appeal as a pauper is granted in the
circumstances mentioned in the Section. ‘Courts’ that are mentioned in
this Section are therefore courts as understood in the strict sense of
being part of the Judicial Branch of the State.
15. Section 21 also makes it clear that the suit that the Limitation
Act speaks of is instituted only by a plaintiff against a defendant.
Both plaintiff and defendant have been defined as including persons
through whom they derive their right to sue and include persons whose
estate is represented by persons such as executors, administrators or
other representatives. This again refers only to suits filed in
courts as is understood by the Code of Civil Procedure. In this
regard, Section 26 of the CPC states:
“Section 26- Institution of suits
(1)Every suit shall be instituted by the presentation of a
plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.”
16. When it comes to applications, again Articles 124, 130 and 131
throw a great deal of light. Only review of judgments by a “court” is
contemplated in the Third Division in the Schedule. Further, leave to
appeal as a pauper again can be made either to the High Court or only
to any other court vide Article 130. And by Article 131, a revision
petition filed only before Courts under the Code of Civil Procedure
Code or the Code of Criminal Procedure are referred to. On a plain
reading of the provisions of the Limitation Act, it becomes clear that
suits, appeals and applications are only to be considered (from the
limitation point of view) if they are filed in courts and not in quasi-
judicial bodies.
17. Now to the case law. A number of decisions have established
that the Limitation Act applies only to courts and not to Tribunals.
The distinction between courts and quasi-judicial decisions is
succinctly brought out in Bharat Bank Ltd. v. Employees of Bharat Bank
Ltd., 1950 SCR 459. This root authority has been followed in a catena
of judgments. This judgment refers to a decision of the King’s Bench
in Cooper v. Wilson. The relevant quotation from the said judgment is
as follows:-
“A true judicial decision presupposes an existing dispute
between two or more parties, and then involves four requisites:
(1) The presentation (not necessarily orally) of their case by
the parties to the dispute; (2) if the dispute between them is a
question of fact, the ascertainment of the fact by means of
evidence adduced by the parties to the dispute and often with
the assistance of argument by or on behalf of the parties on the
evidence; (3) if the dispute between them is a question of law,
the submission of legal argument by the parties, and (4) a
decision which disposes of the whole matter by a finding upon
the facts in dispute and application of the law of the land to
the facts so found, including where required a ruling upon any
disputed question of law. A quasi-judicial decision equally
presupposes an existing dispute between two or more parties and
involves (1) and (2), but does not necessarily involve (3) and
never involves (4). The place of (4) is in fact taken by
administrative action, the character of which is determined by
the Minister's free choice.”
18. Under our constitutional scheme of things, the judiciary is
dealt with in Chapter IV of Part V and Chapter V of Part VI. Chapter
IV of Part V deals with the Supreme Court and Chapter V of Part VI
deals with the High Courts and courts subordinate thereto. When the
Constitution uses the expression “court”, it refers to this Court
system. As opposed to this court system is a system of quasi-judicial
bodies called Tribunals. Thus, Articles 136 and 227 refer to “courts”
as distinct from “tribunals”. The question in this case is whether
the Limitation Act extends beyond the court system mentioned above and
embraces within its scope quasi-judicial bodies as well.
19. A series of decisions of this Court have clearly held that the
Limitation Act applies only to courts and does not apply to quasi-
judicial bodies. Thus, in Town Municipal Council, Athani v. Presiding
Officer, Labour Court, (1969) 1 SCC 873, a question arose as to what
applications are covered under Article 137 of the Schedule to the
Limitation Act. It was argued that an application made under the
Industrial Disputes Act to a Labour Court was covered by the said
Article. This Court negatived the said plea in the following terms:-
“12. This point, in our opinion, may be looked at from another
angle also. When this Court earlier held that all the articles
in the third division to the schedule, including Article 181 of
the Limitation Act of 1908, governed applications under the Code
of Civil Procedure only, it clearly implied that the
applications must be presented to a court governed by the Code
of Civil Procedure. Even the applications under the Arbitration
Act that were included within the third division by amendment of
Articles 158 and 178 were to be presented to courts whose
proceedings were governed by the Code of Civil Procedure. As
best, the further amendment now made enlarges the scope of the
third division of the schedule so as also to include some
applications presented to courts governed by the Code of
Criminal Procedure. One factor at least remains constant and
that is that the applications must be to courts to be governed
by the articles in this division. The scope of the various
articles in this division cannot be held to have been so
enlarged as to include within them applications to bodies other
than courts, such as a quasi judicial tribunal, or even an
executive authority. An Industrial Tribunal or a Labour Court
dealing with applications or references under the Act are not
courts and they are in no way governed either by the Code of
Civil Procedure or the Code of Criminal Procedure. We cannot,
therefore, accept the submission made that this article will
apply even to applications made to an Industrial Tribunal or a
Labour Court. The alterations made in the article and in the new
Act cannot, in our opinion, justify the interpretation that even
applications presented to bodies, other than courts, are now to
be governed for purposes of limitation by Article 137.”
Similarly, in Nityananda, M. Joshi & Ors. v. Life Insurance
Corporation & Ors., (1969) 2 SCC 199, this Court followed the judgment
in Athani’s case and turned down a plea that an application made to a
Labour Court would be covered under Article 137 of the Limitation Act.
This Court emphatically stated that Article 137 only contemplates
applications to courts in the following terms:
“3. In our view Article 137 only contemplates applications to
Courts. In the Third Division of the Schedule to the Limitation
Act, 1963 all the other applications mentioned in the various
articles are applications filed in a court. Further Section 4 of
the Limitation Act, 1963, provides for the contingency when the
prescribed period for any application expires on a holiday and
the only contingency contemplated is “when the court is closed.”
Again under Section 5 it is only a court which is enabled to
admit an application after the prescribed period has expired if
the court is satisfied that the applicant had sufficient cause
for not preferring the application. It seems to us that the
scheme of the Indian Limitation Act is that it only deals with
applications to courts, and that the Labour Court is not a court
within the Indian Limitation Act, 1963.'”
20. In Kerala State Electricity Board v. T.P. Kunhaliumma, (1976) 4
SCC 634, a 3-Judge Bench of this Court followed the aforesaid two
judgments and stated:-
“22. The conclusion we reach is that Article 137 of the 1963
Limitation Act will apply to any petition or application filed
under any Act to a civil court. With respect we differ from the
view taken by the two-judge bench of this Court in Athani
Municipal Council case [(1969) 1 SCC 873 : (1970) 1 SCR 51] and
hold that Article 137 of the 1963 Limitation Act is not confined
to applications contemplated by or under the Code of Civil
Procedure. The petition in the present case was to the District
Judge as a court. The petition was one contemplated by the
Telegraph Act for judicial decision. The petition is an
application falling within the scope of Article 137 of the 1963
Limitation Act.”
This judgment is an authoritative pronouncement by a 3-Judge Bench
that the Limitation Act applies only to courts and not to quasi-
judicial Tribunals. Athani’s case was dissented from on a different
proposition – that Article 137 is not confined to applications under
the Code of Civil Procedure alone. So long as an application is made
under any statute to a Civil Court, such application will be covered
by Article 137 of the Limitation Act.
21. The stage is now set for a decision on which wide ranging
arguments were made by counsel on both sides. In Commissioner of
Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur, (1975) 4
SCC 22, a 3-Judge Bench was confronted with whether Section 14 of the
Limitation Act applied to the Sales Tax authorities under the U.P.
Sales Tax Act. In no uncertain terms, this Court held:-
“8. Mr Karkhanis is right that this matter is no longer res
Integra. In Shrimati Ujjam Bai v. State of U.P. [AIR 1962 SC
1621 : (1963) 1 SCR 778] Hidayatullah, J. (as he then was)
speaking for the Court, observed:
“The Taxing authorities are instrumentalities of the State. They
are not a part of the legislature, nor are they a part of the
Judiciary. Their functions are the assessment and collection of
taxes and in the process of assessing taxes, they follow a
pattern of action which is considered judicial. They are not
thereby converted into courts of civil judicature. They still
remain the instrumentalities of the State and are within the
definition of ‘State’ in Article 12.”
9. The above observations were quoted with approval by this
Court in Jagannath Prasad case [AIR 1963 SC 416 : (1963) 2 SCR
850 : 14 STC 536] and it was held that a Sales Tax Officer under
U.P. Sales Tax Act, 1948 was not a court within the meaning of
Section 195 of the Code of Criminal Procedure although he is
required to perform certain quasi-judicial functions. The
decision in Jagannath Prasad case it seems, was not brought to
the notice of the High Court. In view of these pronouncements of
this Court, there is no room for argument that the Appellate
Authority and the Judge (Revisions) Sales tax exercising
jurisdiction under the Sales Tax Act, are “courts”. They are
merely Administrative Tribunals and “not courts”. Section 14,
Limitation Act, therefore, does not, in terms apply to
proceedings before such tribunals.”
It then went on to discuss whether the general principle underlying
Section 14 would be applicable and held:-
“12. Three features of the scheme of the above provision are
noteworthy. The first is that no limitation has been prescribed
for the suo motu exercise of its jurisdiction by the revising
authority. The second is that the period of one year prescribed
as limitation for filing an application for revision by the
aggrieved party is unusually long. The third is that the
revising authority has no discretion to extend this
period beyond a further period of six months, even on sufficient
cause shown. As rightly pointed out in the minority judgment of
the High Court, pendency of proceedings of the nature
contemplated by Section 14(2) of the Limitation Act, may amount
to a sufficient cause for condoning the delay and extending the
limitation for filing a revision application, but Section 10(3-
B) of the Sales Tax Act gives no jurisdiction to the revising
authority to extend the limitation, even in such a case, for a
further period of more than six months.
13. The three stark features of the scheme and language of the
above provision, unmistakably show that the legislature has
deliberately excluded the application of the principles
underlying Sections 5 and 14 of the Limitation Act, except to
the extent and in the truncated form embodied in sub-section (3-
B) of Section 10 of the Sales Tax Act. Delay in disposal of
revenue matters adversely affects the steady inflow of revenues
and the financial stability of the State. Section 10 is
therefore designed to ensure speedy and final determination of
fiscal matters within a reasonably certain time-schedule.
14. It cannot be said that by excluding the unrestricted
application of the principles of Sections 5 and 14 of the
Limitation Act, the legislature has made the provisions of
Section 10 unduly oppressive. In most cases, the discretion to
extend limitation, on sufficient cause being shown for a further
period of six months only, given by sub-section (3-B) would be
enough to afford relief. Cases are no doubt conceivable where an
aggrieved party, despite sufficient cause, is unable to make an
application for revision within this maximum period of 18
months. Such harsh cases would be rare. Even in such exceptional
cases of extreme hardship, the revising authority may, on its
own motion, entertain revision and grant relief.”
22. It is clear that this judgment clearly laid down two things –
one that authorities under the Sales Tax Act are not “courts” and
thus, the Limitation Act will not apply to them. It also laid down
that the language of Section 10 (3-B) of the U.P. Sales Tax Act made
it clear that an unusually long period of limitation had been given
for filing a revision application and therefore said that the said
Section as construed by the Court would not be unduly oppressive. Most
cases would, according to the Court, be filed within a maximum period
of 18 months but even in cases, rare as they are, filed beyond such
period, the revising authority may on its own motion entertain the
revision and grant relief. Given the three features of the U.P. Sales
Tax Act scheme, the Court held that the legislature deliberately
excluded the application of the principle underlying Section 14 except
to the limited extent that it may amount to sufficient cause for
condoning delay within the period of 18 months.
23. Close upon the heels of this judgment comes another 3-Judge
Bench decision under the same provision of the U.P. Sales Tax Act. In
this judgment, another 3-Judge Bench in C.S.T. v. Madan Lal Das and
Sons, 1976 (4) SCC 464, without adverting to either Parson Tools or
the three other judgments mentioned hereinabove went on to apply
Section 12 (2) of the Limitation Act to proceedings under the U.P.
Sales Tax Act. None of the aforesaid four decisions were pointed out
to the court and it was not argued that the Limitation Act applies
only to courts and not to Sales Tax authorities who are quasi-judicial
Tribunals. This judgment, therefore, is not an authority for the
proposition that the Limitation Act would apply to Tribunals as
opposed to courts. Clearly the conclusion reached would be contrary
to four earlier decisions three of which are 3-Judge Bench decisions.
24. In fact, even after this judgment, in Officer on Special Duty
(Land Acquisition) v. Shah Manilal Chandulal, (1996) 9 SCC 414, this
Court held that a Land Acquisition Officer under the Land Acquisition
Act not being a court, the provisions of the Limitation Act would not
apply. The court concluded, after adverting to some of the previous
judgments of this Court as follows:-
“18. Though hard it may be, in view of the specific limitation
provided under proviso to Section 18(2) of the Act, we are of
the considered view that sub-section (2) of Section 29 cannot be
applied to the proviso to sub-section (2) of Section 18. The
Collector/LAO, therefore, is not a court when he acts as a
statutory authority under Section 18(1). Therefore, Section 5 of
the Limitation Act cannot be applied for extension of the period
of limitation prescribed under proviso to sub-section (2) of
Section 18. The High Court, therefore, was not right in its
finding that the Collector is a court under Section 5 of the
Limitation Act.
19. Accordingly, we hold that the applications are barred by
limitation and the Collector has no power to extend time for
making an application under Section 18(1) for reference to the
court.”
25. Two other judgments of this Court need to be dealt with at this
stage. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995)
5 SCC 5, a 2-Judge Bench of this Court held that the Limitation Act
would apply to the appellate authority constituted under Section 13 of
the Kerala Buildings (Lease and Rent Control) Act , 1965. This was
done by applying the provision of Section 29(2) of the Limitation Act.
Despite referring to various earlier judgments of this Court which
held that the Limitation Act applies only to courts and not to
Tribunals, this Court in this case held to the contrary. In
distinguishing the Parson Tools’ case, which is a 3-Judge Bench
binding on the Court that decided Mukri Gopalan’s case, the Court
held:-
“If the Limitation Act does not apply then neither Section 29(2)
nor Section 14(2) of the Limitation Act would apply to
proceedings before him. But so far as this Court is concerned it
did not go into the question whether Section 29(2) would not get
attracted because the U.P. Sales Tax Act Judge (Revisions) was
not a court but it took the view that because of the express
provision in Section 10(3)(B) applicability of Section 14(2) of
the Sales Tax Act was ruled out. Implicit in this reasoning is
the assumption that but for such an express conflict or contrary
intention emanating from Section 10(3)(B) of the U.P. Sales Tax
Act which was a special law, Section 29(2) would have brought in
Section 14(2) of the Limitation Act even for governing period of
limitation for such revision applications. In any case, the
scope of Section 29(2) was not considered by the aforesaid
decision of the three learned Judges and consequently it cannot
be held to be an authority for the proposition that in
revisional proceedings before the Sales Tax authorities
functioning under the U.P. Sales Tax Act Section 29(2) cannot
apply as Mr. Nariman would like to have it.”
It then went on to follow the judgment reported in The Commissioner of
Sales Tax, U.P. v. M/s. Madan Lal Das & Sons, Bareilly, (1976) 4 SCC
464 which, as has been pointed out earlier, is not an authority for
the proposition that the Limitation Act would apply to Tribunals. In
fact, Mukri Gopalan’s case was distinguished in Om Prakash v. Ashwani
Kumar Bassi, (2010) 9 SCC 183 at paragraph 22 as follows:
“22. The decision in Mukri Gopalan case [(1995) 5 SCC 5] relied
upon by Mr Ujjal Singh is distinguishable from the facts of this
case. In the facts of the said case, it was the District Judges
who were discharging the functions of the appellate authority
and being a court, it was held that the District Judge,
functioning as the appellate authority, was a court and
not persona designata and was, therefore, entitled to resort to
Section 5 of the Limitation Act. That is not so in the instant
case where the Rent Controller appointed by the State Government
is a member of the Punjab Civil Services and, therefore,
a persona designata who would not be entitled to apply the
provisions of Section 5 of the Limitation Act, 1963, as in the
other case.”
The fact that the District Judge himself also happened to be the
appellate authority under the Rent Act would have been sufficient on
the facts of the case for the Limitation Act to apply without going
into the proposition that the Limitation Act would apply to tribunals.
26. Quite apart from Mukri Gopalan’s case being out of step with at
least five earlier binding judgments of this Court, it does not square
also with the subsequent judgment in Consolidated Engg. Enterprises v.
Principal secy., Irrigation Deptt., (2008) 7 SCC 169. A 3-Judge Bench
of this Court was asked to decide whether Section 14 of the Limitation
Act would apply to Section 34(3) of the Arbitration and Conciliation
Act, 1996. After discussing the various provisions of the Arbitration
Act and the Limitation Act, this Court held:
“23. At this stage it would be relevant to ascertain whether
there is any express provision in the Act of 1996, which
excludes the applicability of Section 14 of the Limitation Act.
On review of the provisions of the Act of 1996 this Court finds
that there is no provision in the said Act which excludes the
applicability of the provisions of Section 14 of the Limitation
Act to an application submitted under Section 34 of the said
Act. On the contrary, this Court finds that Section 43 makes the
provisions of the Limitation Act, 1963 applicable to arbitration
proceedings. The proceedings under Section 34 are for the
purpose of challenging the award whereas the proceeding referred
to under Section 43 are the original proceedings which can be
equated with a suit in a court. Hence, Section 43 incorporating
the Limitation Act will apply to the proceedings in the
arbitration as it applies to the proceedings of a suit in the
court. Sub-section (4) of Section 43, inter alia, provides that
where the court orders that an arbitral award be set aside, the
period between the commencement of the arbitration and the date
of the order of the court shall be excluded in computing the
time prescribed by the Limitation Act, 1963, for the
commencement of the proceedings with respect to the dispute so
submitted. If the period between the commencement of the
arbitration proceedings till the award is set aside by the
court, has to be excluded in computing the period of limitation
provided for any proceedings with respect to the dispute, there
is no good reason as to why it should not be held that the
provisions of Section 14 of the Limitation Act would be
applicable to an application submitted under Section 34 of the
Act of 1996, more particularly where no provision is to be found
in the Act of 1996, which excludes the applicability of Section
14 of the Limitation Act, to an application made under Section
34 of the Act. It is to be noticed that the powers under Section
34 of the Act can be exercised by the court only if the
aggrieved party makes an application. The jurisdiction under
Section 34 of the Act, cannot be exercised suo motu. The total
period of four months within which an application, for setting
aside an arbitral award, has to be made is not unusually long.
Section 34 of the Act of 1996 would be unduly oppressive, if it
is held that the provisions of Section 14 of the Limitation Act
are not applicable to it, because cases are no doubt conceivable
where an aggrieved party, despite exercise of due diligence and
good faith, is unable to make an application within a period of
four months. From the scheme and language of Section 34 of the
Act of 1996, the intention of the legislature to exclude the
applicability of Section 14 of the Limitation Act is not
manifest. It is well to remember that Section 14 of the
Limitation Act does not provide for a fresh period of limitation
but only provides for the exclusion of a certain period. Having
regard to the legislative intent, it will have to be held that
the provisions of Section 14 of the Limitation Act, 1963 would
be applicable to an application submitted under Section 34 of
the Act of 1996 for setting aside an arbitral award.”
While discussing Parson Tools, this Court held:
“25……In appeal, this Court held that (1) if the legislature in a
special statute prescribes a certain period of limitation, then
the Tribunal concerned has no jurisdiction to treat within
limitation, an application, by excluding the time spent in
prosecuting in good faith, on the analogy of Section 14(2) of
the Limitation Act, and (2) the appellate authority and the
revisional authority were not “courts” but were merely
administrative tribunals and, therefore, Section 14 of the
Limitation Act did not, in terms, apply to the proceedings
before such tribunals.
26. From the judgment of the Supreme Court in CST [(1975) 4 SCC
22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] it is evident that
essentially what weighed with the Court in holding that Section
14 of the Limitation Act was not applicable, was that the
appellate authority and the revisional authority were not
“courts”. The stark features of the revisional powers pointed
out by the Court, showed that the legislature had deliberately
excluded the application of the principles underlying Sections 5
and 14 of the Limitation Act. Here in this case, the Court is
not called upon to examine scope of revisional powers. The Court
in this case is dealing with Section 34 of the Act which confers
powers on the court of the first instance to set aside an award
rendered by an arbitrator on specified grounds. It is not the
case of the contractor that the forums before which the
Government of India undertaking had initiated proceedings for
setting aside the arbitral award are not “courts”. In view of
these glaring distinguishing features, this Court is of the
opinion that the decision rendered in CST [(1975) 4 SCC 22 :
1975 SCC (Tax) 185 : (1975) 3 SCR 743] did not decide the issue
which falls for consideration of this Court and, therefore, the
said decision cannot be construed to mean that the provisions of
Section 14 of the Limitation Act are not applicable to an
application submitted under Section 34 of the Act of 1996.”
In a separate concurring judgment Justice Raveendran
specifically held:
“44. It may be noticed at this juncture that the Schedule to the
Limitation Act prescribes the period of limitation only to
proceedings in courts and not to any proceeding before a
tribunal or quasi-judicial authority. Consequently Sections 3
and 29(2) of the Limitation Act will not apply to proceedings
before the tribunal. This means that the Limitation Act will not
apply to appeals or applications before the tribunals, unless
expressly provided.
While dealing with Parson Tools, the learned Judge held:
“56. In Parson Tools [(1975) 4 SCC 22] this Court did not hold
that Section 14(2) was excluded by reason of the wording of
Section 10(3-B) of the Sales Tax Act. This Court was considering
an appeal against the Full Bench decision of the Allahabad High
Court. Two Judges of the High Court had held that the time spent
in prosecuting the application for setting aside the order of
dismissal of appeals in default, could be excluded when
computing the period of limitation for filing a revision under
Section 10 of the said Act, by application of the principle
underlying Section 14(2) of the Limitation Act. The minority
view of the third Judge was that the revisional authority under
Section 10 of the U.P. Sales Tax Act did not act as a court but
only as a Revenue Tribunal and therefore the Limitation Act did
not apply to the proceedings before such Tribunal, and
consequently, neither Section 29(2) nor Section 14(2) of the
Limitation Act applied. The decision of the Full Bench was
challenged by the Commissioner of Sales Tax before this Court,
contending that the Limitation Act did not apply to tribunals,
and Section 14(2) of the Limitation Act was excluded in
principle or by analogy. This Court upheld the view that the
Limitation Act did not apply to tribunals, and that as the
revisional authority under Section 10 of the U.P. Sales Tax Act
was a tribunal and not a court, the Limitation Act was
inapplicable. This Court further held that the period of
pendency of proceedings before the wrong forum could not be
excluded while computing the period of limitation by applying
Section 14(2) of the Limitation Act. This Court, however, held
that by applying the principle underlying Section 14(2), the
period of pendency before the wrong forum may be considered as a
“sufficient cause” for condoning the delay, but then having
regard to Section 10(3-B), the extension on that ground could
not extend beyond six months. The observation that pendency of
proceedings of the nature contemplated by Section 14(2) of the
Limitation Act, may amount to a sufficient cause for condoning
the delay and extending the limitation and such extension cannot
be for a period in excess of the ceiling period prescribed, is
in the light of its finding that Section 14(2) of the Limitation
Act was inapplicable to revisions under Section 10(3-B) of the
U.P. Sales Tax Act. These observations cannot be interpreted as
laying down a proposition that even where Section 14(2) of the
Limitation Act in terms applied and the period spent before
wrong forum could therefore be excluded while computing the
period of limitation, the pendency before the wrong forum should
be considered only as a sufficient cause for extension of period
of limitation and therefore, subjected to the ceiling relating
to the extension of the period of limitation. As we are
concerned with a proceeding before a court to which Section
14(2) of the Limitation Act applies, the decision in Parson
Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743]
which related to a proceeding before a Tribunal to which Section
14(2) of the Limitation Act did not apply, has no application.”
27. Obviously, the ratio of Mukri Gopalan does not square with the
observations of the 3-Judge Bench in Consolidated Engineering
Enterprises. In the latter case, this Court has unequivocally held
that Parson Tools is an authority for the proposition that the
Limitation Act will not apply to quasi-judicial bodies or Tribunals.
To the extent that Mukri Gopalan is in conflict with the judgment in
the Consolidated Engineering Enterprises case, it is no longer good
law.
28. The sheet anchor in Mukri Gopalan was Section 29(2) of the
Limitation Act. Section 29(2) states:-
“29. Savings.—
(2) 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.”
A bare reading of this Section would show that the special or local
law described therein should prescribe for any suit, appeal or
application a period of limitation different from the period
prescribed by the schedule. This would necessarily mean that such
special or local law would have to lay down that the suit, appeal or
application to be instituted under it should be a suit, appeal or
application of the nature described in the schedule. We have already
held that such suits, appeals or applications as are referred to in
the schedule are only to courts and not to quasi-judicial bodies or
Tribunals. It is clear, therefore, that only when a suit, appeal or
application of the description in the schedule is to be filed in a
court under a special or local law that the provision gets attracted.
This is made even clearer by a reading of Section 29(3). Section
29(3) states:-
“29. Savings.—
(3) Save as otherwise provided in any law for the time being in
force with respect to marriage and divorce, nothing in this Act
shall apply to any suit or other proceeding under any such law.”
29. When it comes to the law of marriage and divorce, the Section
speaks not only of suits but other proceedings as well. Such
proceedings may be proceedings which are neither appeals nor
applications thus making it clear that the laws relating to marriage
and divorce, unlike the law of limitation, may contain proceedings
other than suits, appeals or applications filed in courts. This again
is an important pointer to the fact that the entirety of the
Limitation Act including Section 29(2) would apply only to the three
kinds of proceedings mentioned all of which are to be filed in courts.
30. It now remains to consider the decision of a 2-Judge Bench
reported in P. Sarathy v. State Bank of India, (2000) 5 SCC 355. This
judgment has held that an abortive proceeding before the appellate
authority under Section 41 of the Tamil Nadu Shops and Establishment
Act would attract the provisions of Section 14 of the Limitation Act
inasmuch as the appellant in this case had been prosecuting with due
diligence another civil proceeding before the appellate authority
under the Tamil Nadu Shops and Establishment Act, which appeal was
dismissed on the ground that the said Act was not applicable to
nationalized banks and that, therefore, such appeal would not be
maintainable. This Court made a distinction between “Civil Court” and
“court’ and expanded the scope of Section 14 stating that any
authority or Tribunal having the trappings of a Court would be a
“court” within the meaning of Section 14. It must be remembered that
the word “Court” refers only to a proceeding which proves to be
abortive. In this context, for Section 14 to apply, two conditions
have to be met. First, the primary proceeding must be a suit, appeal
or application filed in a Civil Court. Second, it is only when it
comes to excluding time in an abortive proceeding that the word
“Court” has been expanded to include proceedings before tribunals.
31. This judgment is in line with a large number of authorities
which have held that Section 14 should be liberally construed to
advance the cause of justice – see: Shakti Tubes Ltd. v. State of
Bihar, (2009) 1 SCC 786 and the judgments cited therein. Obviously,
the context of Section 14 would require that the term “court” be
liberally construed to include within it quasi-judicial Tribunals as
well. This is for the very good reason that the principle of Section
14 is that whenever a person bonafide prosecutes with due diligence
another proceeding which proves to be abortive because it is without
jurisdiction, or otherwise no decision could be rendered on merits,
the time taken in such proceeding ought to be excluded as otherwise
the person who has approached the Court in such proceeding would be
penalized for no fault of his own. This judgment does not further the
case of Shri Viswanathan in any way. The question that has to be
answered in this case is whether suits, appeals or applications
referred to by the Limitation Act are to be filed in courts. This has
nothing to do with “civil proceedings” referred to in Section 14 which
may be filed before other courts or authorities which ultimately do
not answer the case before them on merits but throw the case out on
some technical ground. Obviously the word “court” in Section 14 takes
its colour from the preceding words “civil proceedings”. Civil
proceedings are of many kinds and need not be confined to suits,
appeals or applications which are made only in courts stricto sensu.
This is made even more clear by the explicit language of Section 14 by
which a civil proceeding can even be a revision which may be to a
quasi-judicial tribunal under a particular statute.
Whether the Principle of Section 14 would apply to an appeal filed
under Section 128 Customs Act.
“128. Appeals to Commissioner (Appeals).—(1) Any person
aggrieved by any decision or order passed under this Act by an
officer of customs lower in rank than a Commissioner of Customs
may appeal to the Commissioner (Appeals) within [sixty days]
from the date of the communication to him of such decision or
order:
[Provided that the Commissioner (Appeals) may, if he is
satisfied that the appellant was prevented by sufficient cause
from presenting the appeal within the aforesaid period of sixty
days, allow it to be presented within a further period of thirty
days.]
[(1-A) The Commissioner (Appeals) may, if sufficient cause is
shown, at any stage of hearing of an appeal, grant time, from
time to time, to the parties or any of them and adjourn the
hearing of the appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than
three times to a party during hearing of the appeal.]
(2) Every appeal under this section shall be in such form and
shall be verified in such manner as may be specified by rules
made in this behalf.”
Prior to its amendment in 2001, the said Section read as under:-
“128. Appeals to Collector (Appeals).—(1) Any person aggrieved
by any decision or order passed under this Act by an officer of
customs lower in rank than a Collector of Customs may appeal to
the Collector (Appeals) within three months from the date of the
communication to him of such decision or order:
Provided that the Collector (Appeals) may, if he is satisfied
that the appellant was prevented by sufficient cause from
presenting the appeal within the aforesaid period of three
months, allow it to be presented within a further period of
three months.
(2) Every appeal under this section shall be in such form and
shall be verified in such manner as may be specified by rules
made in this behalf.”
We have already held that the Limitation Act including Section 14
would not apply to appeals filed before a quasi-judicial Tribunal such
as the Collector (Appeals) mentioned in Section 128 of the Customs
Act. However, this does not conclude the issue. There is authority
for the proposition that even where Section 14 may not apply, the
principles on which Section 14 is based, being principles which
advance the cause of justice, would nevertheless apply. We must never
forget, as stated in Bhudan Singh & Anr. v. Nabi Bux & Anr., (1970) 2
SCR 10, that justice and reason is at the heart of all legislation by
Parliament. This was put in very felicitous terms by Hegde,J. as
follows:
“Before considering the meaning of the word "held" in
Section 9, it is necessary to mention that it is proper to
assume that the lawmakers who are the representatives of the
people enact laws which the society considers as honest, fair
and equitable. The object of every legislation is to advance
public welfare. In other words as observed by Crawford in his
book on Statutory Constructions the entire legislative process
is influenced by considerations of justice and reason. Justice
and reason constitute the great general legislative intent in
every piece of legislation. Consequently where the suggested
construction operates harshly, ridiculously or in any other
manner contrary to prevailing conceptions of justice and reason,
in most instances, it would seem that the apparent or suggested
meaning of the statute, was not the one intended by the law-
makers. In the absence of some other indication that the harsh
or ridiculous effect was actually intended by the legislature,
there is little reason to believe that it represents the
legislative intent.”
32. This is why the principles of Section 14 were applied in J.
Kumaradasan Nair v. Iric Sohan, (2009) 12 SCC 175 to a revision
application filed before the High Court of Kerala. The Court held:
“16. The provisions contained in Sections 5 and 14 of the
Limitation Act are meant for grant of relief where a person has
committed some mistake. The provisions of Sections 5 and 14 of
the Limitation Act alike should, thus, be applied in a broad
based manner. When sub-section (2) of Section 14 of the
Limitation Act per se is not applicable, the same would not mean
that the principles akin thereto would not be applied.
Otherwise, the provisions of Section 5 of the Limitation Act
would apply. There cannot be any doubt whatsoever that the same
would be applicable to a case of this nature.
17. There cannot furthermore be any doubt whatsoever that having
regard to the definition of “suit” as contained in Section 2(l)
of the Limitation Act, a revision application will not answer
the said description. But, although the provisions of Section 14
of the Limitation Act per se are not applicable, in our opinion,
the principles thereof would be applicable for the purpose of
condonation of delay in filing an appeal or a revision
application in terms of Section 5 thereof.
18. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of any
provision of law would, by itself, be not sufficient to take
away the jurisdiction of a court if it is otherwise vested in it
in law. While exercising its power, the court will merely
consider whether it has the source to exercise such power or
not. The court will not apply the beneficent provisions like
Sections 5 and 14 of the Limitation Act in a pedantic manner.
When the provisions are meant to apply and in fact found to be
applicable to the facts and circumstances of a case, in our
opinion, there is no reason as to why the court will refuse to
apply the same only because a wrong provision has been
mentioned. In a case of this nature, sub-section (2) of Section
14 of the Limitation Act per se may not be applicable, but, as
indicated hereinbefore, the principles thereof would be
applicable for the purpose of condonation of delay in terms of
Section 5 thereof.”
The Court further quoted from Consolidated Engineering Enterprises an
instructive passage:
“21. In Consolidated Engg. Enterprises v. Irrigation
Deptt. [(2008) 7 SCC 169] this Court held: (SCC p. 181, para 22)
“22. The policy of the section is to afford protection to a
litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect cannot be
decided on merits and is dismissed. While considering the
provisions of Section 14 of the Limitation Act, proper approach
will have to be adopted and the provisions will have to be
interpreted so as to advance the cause of justice rather than
abort the proceedings. It will be well to bear in mind that an
element of mistake is inherent in the invocation of Section 14.
In fact, the section is intended to provide relief against the
bar of limitation in cases of mistaken remedy or selection of a
wrong forum. On reading Section 14 of the Act it becomes clear
that the legislature has enacted the said section to exempt a
certain period covered by a bona fide litigious activity. Upon
the words used in the section, it is not possible to sustain the
interpretation that the principle underlying the said section,
namely, that the bar of limitation should not affect a person
honestly doing his best to get his case tried on merits but
failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section 34
of the Act of 1996. The principle is clearly applicable not only
to a case in which a litigant brings his application in the
court, that is, a court having no jurisdiction to entertain it
but also where he brings the suit or the application in the
wrong court in consequence of bona fide mistake or (sic of) law
or defect of procedure. Having regard to the intention of the
legislature this Court is of the firm opinion that the equity
underlying Section 14 should be applied to its fullest extent
and time taken diligently pursuing a remedy, in a wrong court,
should be excluded. See Shakti Tubes Ltd. v. State of
Bihar [(2009) 1 SCC 786].”
33. Various provisions of the Limitation Act are based on advancing
the cause of justice. Section 6 is one such. It reads as follows:-
“6. Legal disability.—(1) Where a person entitled to institute a
suit or make an application for the execution of a decree is, at
the time from which the prescribed period is to be reckoned, a
minor or insane, or an idiot, he may institute the suit or make
the application within the same period after the disability has
ceased, as would otherwise have been allowed from the time
specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed
period is to be reckoned, affected by two such disabilities, or
where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the
application within the same period after both disabilities have
ceased, as would otherwise have been allowed from the time so
specified.
(3) Where the disability continues up to the death of that
person, his legal representative may institute the suit or make
the application within the same period after the death, as would
otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section
(3) is, at the date of the death of the person whom he
represents, affected by any such disability, the rules contained
in sub-sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability
ceases but within the period allowed to him under this section,
his legal representative may institute the suit or make the
application within the same period after the death, as would
otherwise have been available to that person had he not died.
Explanation.—For the purposes of this section, ‘minor’ includes
a child in the womb.”
On the assumption that Section 6 does not apply on the facts of a
given case, can it be said that the principles on which it is based
have no application? Suppose, in a given case, the person entitled to
institute a proceeding not governed by the Limitation Act were a
minor, a lunatic or an idiot, would he not be entitled to institute
such proceedings after such disability has ceased, for otherwise he
would be barred by the period of limitation contained in the
particular statute governing his rights. This Section again is a
pointer to the fact that courts always lean in favour of advancing the
cause of justice where a clear case is made out for so doing.
34. However, it remains to consider whether Shri Sanghi is right in
stating that Section 128 is a complete code by itself which
necessarily excludes the application of Section 14 of the Limitation
Act. For this proposition he relied strongly on Parson Tools which
has been discussed hereinabove. As has already been stated, Parson
Tools was a judgment which turned on the three features mentioned in
the said case. Unlike the U.P. Sales Tax Act, there is no provision
in the Customs Act which enables a party to invoke suo moto the
appellate power and grant relief to a person who institutes an appeal
out of time in an appropriate case. Also, Section 10 of the U.P.
Sales Tax Act dealt with the filing of a revision petition after a
first appeal had already been rejected, and not to a case of a first
appeal as provided under Section 128 of the Customs Act. Another
feature, which is of direct relevance in this case, is that for
revision petitions filed under the U.P. Sales Tax Act a sufficiently
long period of 18 months had been given beyond which it was the policy
of the legislature not to extend limitation any further. This aspect
of Parson Tools has been explained in Consolidated Engineering in some
detail by both the main judgment as well as the concurring judgment.
In the latter judgment, it has been pointed out that there is a vital
distinction between extending time and condoning delay. Like Section
34 of the Arbitration Act, Section 128 of the Customs Act is a Section
which lays down that delay cannot be condoned beyond a certain period.
Like Section 34 of the Arbitration Act, Section 128 of the Customs
Act does not lay down a long period. In these circumstances, to infer
exclusion of Section 14 or the principles contained in Section 14
would be unduly harsh and would not advance the cause of justice. It
must not be forgotten as is pointed out in the concurring judgment in
Consolidated Engineering that:
“Even when there is cause to apply Section 14, the limitation
period continues to be three months and not more, but in
computing the limitation period of three months for the
application under Section 34(1) of the AC Act, the time during
which the applicant was prosecuting such application before the
wrong court is excluded, provided the proceeding in the wrong
court was prosecuted bona fide, with due diligence. Western
Builders [(2006) 6 SCC 239] therefore lays down the correct
legal position.”
35. Merely because Parson Tools also dealt with a provision in a tax
statute does not make the ratio of the said decision apply to a
completely differently worded tax statute with a much shorter period
of limitation – Section 128 of the Customs Act. Also, the principle
of Section 14 would apply not merely in condoning delay within the
outer period prescribed for condonation but would apply de hors such
period for the reason pointed out in Consolidated Engineering above,
being the difference between exclusion of a certain period altogether
under Section 14 principles and condoning delay. As has been pointed
out in the said judgment, when a certain period is excluded by
applying the principles contained in Section 14, there is no delay to
be attributed to the appellant and the limitation period provided by
the concerned statute continues to be the stated period and not more
than the stated period. We conclude, therefore, that the principle of
Section 14 which is a principle based on advancing the cause of
justice would certainly apply to exclude time taken in prosecuting
proceedings which are bona fide and with due diligence pursued, which
ultimately end without a decision on the merits of the case.
36. Shri Sanghi also cited Ranbaxy Laboratories Ltd. v. Union of
India, (2011) 10 SCC 292. He relied upon paragraph 14 of this judgment
which reads as follows:-
“14. It is a well-settled proposition of law that a fiscal
legislation has to be construed strictly and one has to look
merely at what is said in the relevant provision; there is
nothing to be read in; nothing to be implied and there is no
room for any intendment. (See Cape Brandy
Syndicate v. IRC [(1921) 1 KB 64] and Ajmera Housing
Corpn. v.CIT [(2010) 8 SCC 739] .)”.
37. We do not see how this judgment furthers the argument of Shri
Sanghi. This is only reiteration of the classic statement of law
contained in the Cape Brandy Syndicate case. Further, the context of
this paragraph is that a literal meaning has to be given to a charging
Section in a tax statute. When it comes to machinery provisions in
tax statutes and provisions which provide for appeals and the
limitation period within which such appeals have to be filed, it is
clear that the aforesaid observations would have no application
whatsoever.
38. Shri Sanghi then referred us to Sree Balaji Nagar Residential
Assn. v. State of Tamil Nadu, (2015) 3 SCC 353 and read out paragraphs
10 and 11 from the said judgment. What was held by this Court in that
case was that Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 does not exclude any period during which a land acquisition
proceeding which might have remain stayed on account of an injunction
granted by any Court. This was so held by contrasting the language of
section 24(2) with the language of Section 19 and Section 69 of the
same Act. This judgment again would have no direct bearing on the
proposition canvassed by Shri Sanghi that Section 128 of the Customs
Act forms a complete code by itself.
What periods are to be excluded under Section 14
39. Shri Viswanathan, learned senior counsel appearing for the
appellant, placed before us a judgment of the Andhra Pradesh High
Court in which it was held that even prior to the institution of a
particular proceeding, time taken in steps taken for prosecuting such
proceedings should also be excluded. In Tirumareddi Rajarao & Ors. v.
The State of Andhra Pradesh & Ors., AIR 1965 A.P. 388, the Andhra
Pradesh High Court held that the period taken for preparatory steps
before instituting proceedings should also be excluded. It said:
“13. We may now turn to the Chambers Twentieth Century
Dictionary for the meanings of the expression "to prosecute". It
means:
To follow onwards or pursue in order to reach or accomplish; to
engage in practise to follow up to pursue, chase, to pursue by
law; to bring before a Court.
14. These meanings do not vouch the construction of the section
advanced by the learned Government Pleader. In our opinion, the
section does not render it essential that the prosecution of the
proceedings should be continued exclusively in the Court, i.e.
the actual proceeding in the Court. There is justification for
the view that it is only the actual period between the
presentation of a proceedings and the disposal of that
particular proceeding should be allowed under the sub-section.
The time during which a party has been taking the indispensable
and necessary steps preparatory to initiate the proceedings in a
court should also be regarded as the time during which he has
been prosecuting the civil proceeding.
It is also to be borne in mind that sub-section (1) makes no
reference to the pendency of the suit, appeal or other
proceeding in a Court of law. The legislature had used words of
general import and of widest amplitude. So, we do not find any
justification for reading a restriction into that sub-section
and to hold that the time during which a party was engaged in
taking steps for invoking the aid of the Court falls outside the
contemplation urged on behalf of the respondents, while the
pendency of a proceeding in a Court could be deducted in
computing the period of limitation, the time occupied in
obtaining certified copies of the judgment which is an essential
requisite for the filing of an appeal or revision in the higher
Court has to be disregarded for purposes of S. 14. We do not
think that the legislature would have contemplated such a
situation. It would certainly result in an anomaly to hold that
the time covered by taking the steps absolutely necessary for
initiating proceedings in a Court should be included in
calculating the period of limitation while the time during which
a former suit or application was pending in a Court should be
excluded. In our considered judgment the section does not make
any distinction between the steps which a litigant has to take
to initiate proceedings in a Court and the actual pendency of
those proceedings in the Court.”
40. In Mst. Duliyabai & Ors. v. Vilayatali & Ors., AIR 1959 MP 271,
a Division Bench of the High Court held:-
“What would be the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding in a
Court of appeal? Certainly the time requisite for obtaining the
certified copies under Section 12 of the Limitation Act would be
included within the meaning of the section. Also the limitation
prescribed for the filing of an appeal would be included, if the
appeal be filed on the last day of limitation.
But if the appeal be filed earlier, the time from the date of
the order impugned upto the actual date of filing of the appeal
would certainly be the time during which the plaintiff can be
said to be prosecuting another civil proceeding in a court of
appeal. We are unable to endorse the view of the learned trial
Judge on this point. A Division Bench of this Court consisting
of Sir Gilbert Stone, C. J. and Niyogi, J., in the case of
Kasturchand v. Wazir Begum' : (AIR 1937 Nag 1) : ILR (1937) Nag
291, held with reference to Article 11 (1) of the Limitation Act
as follows:
"Then it is said that the plaintiff is out of time owing to the
operation of Article 11 (1) of the Limitation Act which, in the
case of a suit by a person against whom an order is passed on
his objection in execution proceedings, fixes one year. The
dates are as follows: the objection order was passed on 5-3-
1928. The plaint was presented in one Court on 15-9-1928, of
course in time. That was returned by that Court on 14-12-1928,
for presentation to what that Court held to be the proper Court.
The plaintiff challenging the correctness of that order appealed
on 6-2-1929 and the appeal was dismissed on 2-9-1929, and the
plaint was presented to the Court as decided by die first Court,
on 25-11-1929. In our opinion the plaintiff has been litigating
the matter in a Court which she bona fide believed to be the
correct tribunal, believing, to the extent of incurring costs of
an appeal against the decision that it was not the correct
tribunal, for something like 10 months.
Those 10 months must be taken into account in considering the
period that has elapsed between the date of suit and the date
when the plaint was eventually filed in the correct Court, and
if this is so taken into account the time that has expired is
less than a year. The limitation point, therefore, in our
opinion, fails."
In the case of Abdul Sattar v. Abdul Husan, AIR 1936 Cal 400,
the plaintiffs had applied for execution of their decree. The
judgment-debtors raised objections to the execution on the
ground of adjustment of the decree. The question of adjustment
was fought in appeals upto the highest Court. Ultimately it was
decided against the plaintiffs by the final appellate Court. The
learned Judges constituting the Division Bench held that the
plaintiffs were entitled to exclude the entire period from the
date of the order recording the adjustment upto the date of the
final order of the highest appellate Court. We feel that this
interpretation of Section 14 is in consonance with the wording
of the Section. Therefore, differing from the learned trial
Judge, we hold that the appellants were entitled to exclude the
period from 18-9-1948 to 15-12-1948.”
41. The language of Section 14, construed in the light of the object
for which the provision has been made, lends itself to such an
interpretation. The object of Section 14 is that if its conditions
are otherwise met, the plaintiff/applicant should be put in the same
position as he was when he started an abortive proceeding. What is
necessary is the absence of negligence or inaction. So long as the
plaintiff or applicant is bonafide pursuing a legal remedy which turns
out to be abortive, the time beginning from the date of the cause of
action of an appellate proceeding is to be excluded if such appellate
proceeding is from an order in an original proceeding instituted
without jurisdiction or which has not resulted in an order on the
merits of the case. If this were not so, anomalous results would
follow. Take the case of a plaintiff or applicant who has succeeded
at the first stage of what turns out to be an abortive proceeding.
Assume that, on a given state of facts, a defendant – appellant or
other appellant takes six months more than the prescribed period for
filing an appeal. The delay in filing the appeal is condoned. Under
explanation (b) of Section 14, the plaintiff or the applicant
resisting such an appeal shall be deemed to be prosecuting a
proceeding. If the six month period together with the original period
for filing the appeal is not to be excluded under Section 14, the
plaintiff/applicant would not get a hearing on merits for no fault of
his, as he in the example given is not the appellant. Clearly
therefore, in such a case, the entire period of nine months ought to
be excluded. If this is so for an appellate proceeding, it ought to
be so for an original proceeding as well with this difference that the
time already taken to file the original proceeding, i.e. the time
prior to institution of the original proceeding cannot be excluded.
Take a case where the limitation period for the original proceeding is
six months. The plaintiff/applicant files such a proceeding on the
ninetieth day i.e. after three months are over. The said proceeding
turns out to be abortive after it has gone through a chequered career
in the appeal courts. The same plaintiff/applicant now files a fresh
proceeding before a court of first instance having the necessary
jurisdiction. So long as the said proceeding is filed within the
remaining three month period, Section 14 will apply to exclude the
entire time taken starting from the ninety first day till the final
appeal is ultimately dismissed. This example also goes to show that
the expression “the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding” needs to be
construed in a manner which advances the object sought to be achieved,
thereby advancing the cause of justice.
42. Section 14 has been interpreted by this Court extremely liberally
inasmuch as it is a provision which furthers the cause of justice.
Thus, in Union of India v. West Coast Paper Mills Ltd., (2004) 3 SCC
458, this Court held:
“14. … In the submission of the learned Senior Counsel, filing
of civil writ petition claiming money relief cannot be said to
be a proceeding instituted in good faith and secondly, dismissal
of writ petition on the ground that it was not an appropriate
remedy for seeking money relief cannot be said to be ‘defect of
jurisdiction or other cause of a like nature’ within the meaning
of Section 14 of the Limitation Act. It is true that the writ
petition was not dismissed by the High Court on the ground of
defect of jurisdiction. However, Section 14 of the Limitation
Act is wide in its application, inasmuch as it is not confined
in its applicability only to cases of defect of jurisdiction but
it is applicable also to cases where the prior proceedings have
failed on account of other causes of like nature. The expression
‘other cause of like nature’ came up for the consideration of
this Court in Roshanlal Kuthalia v. R.B. Mohan Singh
Oberoi[(1975) 4 SCC 628] and it was held that Section 14 of the
Limitation Act is wide enough to cover such cases where the
defects are not merely jurisdictional strictly so called but
others more or less neighbours to such deficiencies. Any
circumstance, legal or factual, which inhibits entertainment or
consideration by the court of the dispute on the merits comes
within the scope of the section and a liberal touch must inform
the interpretation of the Limitation Act which deprives the
remedy of one who has a right.”
Similarly, in India Electric Works Ltd. v. James Mantosh, (1971)
1 SCC 24, this Court held:
“7. It is well settled that although all questions of
limitation must be decided by the provisions of the Act and the
courts cannot travel beyond them the words ‘or other cause of a
like nature’ must be construed liberally. Some clue is furnished
with regard to the intention of the legislature by Explanation
III in Section 14(2). Before the enactment of the Act in 1908,
there was a conflict amongst the High Courts on the question
whether misjoinder and non-joinder were defects which were
covered by the words ‘or other cause of a like nature’. It was
to set at rest this conflict that Explanation III was added. An
extended meaning was thus given to these words. Strictly
speaking misjoinder or non-joinder of parties could hardly be
regarded as a defect of jurisdiction or something similar or
analogous to it.”
43. As has been already noticed, Sarathy’s case i.e. (2000) 5 SCC
355 has also held that the court referred to in Section 14 would
include a quasi-judicial tribunal. There appears to be no reason for
limiting the reach of the expression “prosecuting with due diligence”
to institution of a proceeding alone and not to the date on which the
cause of action for such proceeding might arise in the case of
appellate or revisional proceedings from original proceedings which
prove to be abortive. Explanation (a) to Section 14 was only meant
to clarify that the day on which a proceeding is instituted and the
day on which it ends are also to be counted for the purposes of
Section 14. This does not lead to the conclusion that the period from
the cause of action to the institution of such proceeding should be
left out. In fact, as has been noticed above, the explanation expands
the scope of Section 14 by liberalizing it. Thus, under explanation
(b) a person resisting an appeal is also deemed to be prosecuting a
proceeding. But for explanation (b), on a literal reading of Section
14, if a person has won in the first round of litigation and an appeal
is filed by his opponent, the period of such appeal would not be
liable to be excluded under the Section, leading to an absurd result.
That is why a plaintiff or an applicant resisting an appeal filed by a
defendant shall also be deemed to prosecute a proceeding so that the
time taken in the appeal can also be the subject matter of exclusion
under Section 14. Equally, explanation (c) which deems misjoinder of
parties or a cause of action to be a cause of a like nature with
defect of jurisdiction, expands the scope of the section. We have
already noticed that the India Electric Works Ltd. judgment has held
that strictly speaking misjoinder of parties or of causes of action
can hardly be regarded as a defect of jurisdiction or something
similar to it. Therefore properly construed, explanation (a) also
confers a benefit and does not by a side wind seek to take away any
other benefit that a purposive reading of Section 14 might give. We,
therefore, agree with the decision of the Madhya Pradesh High Court
that the period from the cause of action till the institution of
appellate or revisional proceedings from original proceedings which
prove to be abortive are also liable to exclusion under the Section.
The view of the Andhra Pradesh High Court is too broadly stated. The
period prior to institution of the initiation of any abortive
proceeding cannot be excluded for the simple reason that Section 14
does not enable a litigant to get a benefit beyond what is
contemplated by the Section - that is to put the litigant in the same
position as if the abortive proceeding had never taken place.
What applies to the facts of this case: the limitation period in
Section 128 pre-amendment or post amendment
44. Shri A.K. Sanghi, learned senior counsel appearing on behalf of
the revenue, has strongly contended before us that the present appeal
must attract the limitation period as on the date of its filing. That
being so, it is clear that the present appeal having been filed before
CESTAT only on 23.5.2003, it is Section 128 post amendment that would
apply and therefore the maximum period available to the appellant
would be 60 plus 30 days. Even if time taken in the abortive
proceedings is to be excluded, the appeal filed will be out of time
being beyond the aforesaid period.
45. It is settled law that periods of limitation are procedural in
nature and would ordinarily be applied retrospectively. This,
however, is subject to a rider. In New India Insurance Co. Ltd. v.
Shanti Misra, (1975) 2 SCC 840, this Court held:
“5. On the plain language of Sections 110-A and 110-F there
should be no difficulty in taking the view that the change in
law was merely a change of forum i.e. a change of adjectival or
procedural law and not of substantive law. It is a well-
established proposition that such a change of law operates
retrospectively and the person has to go to the new forum even
if his cause of action or right of action accrued prior to the
change of forum. He will have a vested right of action but not a
vested right of forum. If by express words the new forum is made
available only to causes of action arising after the creation of
the forum, then the retrospective operation of the law is taken
away. Otherwise the general rule is to make it retrospective.”
46. In answering a question which arose under Section 110A of the
Motor Vehicles Act, this Court held:
“7.....“(1) Time for the purpose of filing the application under
Section 110-A did not start running before the constitution of
the tribunal. Time had started running for the filing of the
suit but before it had expired the forum was changed. And for
the purpose of the changed forum, time could not be deemed to
have started running before a remedy of going to the new forum
is made available.
(2) Even though by and large the law of limitation has been held
to be a procedural law, there are exceptions to this principle.
Generally the law of limitation which is in vogue on the date of
the commencement of the action governs it. But there are certain
exceptions to this principle. The new law of limitation
providing a longer period cannot revive a dead remedy. Nor can
it suddenly extinguish a vested right of action by providing for
a shorter period of limitation.”
47. This statement of the law was referred to with approval in Vinod
Gurudas Raikar v. National Insurance Co. Ltd., (1991) 4 SCC 333 as
follows:-
“7. It is true that the appellant earlier could file an
application even more than six months after the expiry of the
period of limitation, but can this be treated to be a right
which the appellant had acquired. The answer is in the negative.
The claim to compensation which the appellant was entitled to,
by reason of the accident was certainly enforceable as a right.
So far the period of limitation for commencing a legal
proceeding is concerned, it is adjectival in nature, and has to
be governed by the new Act — subject to two conditions. If under
the repealing Act the remedy suddenly stands barred as a result
of a shorter period of limitation, the same cannot be held to
govern the case, otherwise the result will be to deprive the
suitor of an accrued right. The second exception is where the
new enactment leaves the claimant with such a short period for
commencing the legal proceeding so as to make it unpractical for
him to avail of the remedy. This principle has been followed by
this Court in many cases and by way of illustration we would
like to mention New India Insurance Co. Ltd. v.Smt Shanti
Misra [(1975) 2 SCC 840 : (1976) 2 SCR 266] . The husband of the
respondent in that case died in an accident in 1966. A period of
two years was available to the respondent for instituting a suit
for recovery of damages. In March, 1967 the Claims Tribunal
under Section 110 of the Motor Vehicles Act, 1939 was
constituted, barring the jurisdiction of the civil court and
prescribed 60 days as the period of limitation. The respondent
filed the application in July, 1967. It was held that not having
filed a suit before March, 1967 the only remedy of the
respondent was by way of an application before the Tribunal. So
far the period of limitation was concerned, it was observed that
a new law of limitation providing for a shorter period cannot
certainly extinguish a vested right of action. In view of the
change of the law it was held that the application could be
filed within a reasonable time after the constitution of the
Tribunal; and, that the time of about four months taken by the
respondent in approaching the Tribunal after its constitution,
could be held to be either reasonable time or the delay of about
two months could be condoned under the proviso to Section 110-
A(3).”
Both these judgments were referred to and followed in Union of
India v. Harnam Singh, (1993) 2 SCC 162, see paragraph 12.
48. The aforesaid principle is also contained in Section 30(a) of
the Limitation Act, 1963.
“30. Provision for suits, etc., for which the prescribed
period is shorter than the period prescribed by the Indian
Limitation Act, 1908.—Notwithstanding anything contained in this
Act,—
(a) any suit for which the period of limitation is shorter than
the period of limitation prescribed by the Indian Limitation
Act, 1908, may be instituted within a period of [seven years]
next after the commencement of this Act or within the period
prescribed for such suit by the Indian Limitation Act, 1908,
whichever period expires earlier:”
49. The reason for the said principle is not far to seek. Though
periods of limitation, being procedural law, are to be applied
retrospectively, yet if a shorter period of limitation is provided by
a later amendment to a statute, such period would render the vested
right of action contained in the statute nugatory as such right of
action would now become time barred under the amended provision.
50. This aspect of the matter is brought out rather well in
Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC 739 as
follows:
“22. Law is well settled that the manner in which the appeal has
to be filed, its form and the period within which the same has
to be filed are matters of procedure, while the right conferred
on a party to file an appeal is a substantive right. The
question is, while dealing with a belated appeal under Section
19(2) of FEMA, the application for condonation of delay has to
be dealt with under the first proviso to sub-section (2) of
Section 52 of FERA or under the proviso to sub-section (2) of
Section 19 of FEMA. For answering that question it is necessary
to examine the law on the point.
Substantive and procedural law
23. Substantive law refers to a body of rules that creates,
defines and regulates rights and liabilities. Right conferred on
a party to prefer an appeal against an order is a substantive
right conferred by a statute which remains unaffected by
subsequent changes in law, unless modified expressly or by
necessary implication. Procedural law establishes a mechanism
for determining those rights and liabilities and a machinery for
enforcing them. Right of appeal being a substantive right always
acts prospectively. It is trite law that every statute is
prospective unless it is expressly or by necessary implication
made to have retrospective operation.
24. Right of appeal may be a substantive right but the procedure
for filing the appeal including the period of limitation cannot
be called a substantive right, and an aggrieved person cannot
claim any vested right claiming that he should be governed by
the old provision pertaining to period of limitation. Procedural
law is retrospective meaning thereby that it will apply even to
acts or transactions under the repealed Act.
25. Law on the subject has also been elaborately dealt with by
this Court in various decisions and reference may be made to a
few of those decisions. This Court in Garikapati Veeraya v. N.
Subbiah Choudhry [AIR 1957 SC 540] , New India Insurance Co.
Ltd. v. Shanti Misra [(1975) 2 SCC 840], Hitendra Vishnu
Thakur v. State of Maharashtra [(1994) 4 SCC 602 : 1994 SCC
(Cri) 1087] , Maharaja Chintamani Saran Nath Shahdeo v. State of
Bihar [(1999) 8 SCC 16] and Shyam Sunder v. Ram Kumar [(2001) 8
SCC 24] , has elaborately discussed the scope and ambit of an
amending legislation and its retrospectivity and held that every
litigant has a vested right in substantive law but no such right
exists in procedural law. This Court has held that the law
relating to forum and limitation is procedural in nature whereas
law relating to right of appeal even though remedial is
substantive in nature.
26. Therefore, unless the language used plainly manifests in
express terms or by necessary implication a contrary intention a
statute divesting vested rights is to be construed as
prospective, a statute merely procedural is to be construed as
retrospective and a statute which while procedural in its
character, affects vested rights adversely is to be construed as
prospective.”
51. This judgment was strongly relied upon by Shri A.K. Sanghi for
the proposition that the law in force on the date of the institution
of an appeal, irrespective of the date of accrual of the cause of
action for filing an appeal, will govern the period of limitation.
Ordinarily, this may well be the case. As has been noticed above,
periods of limitation being procedural in nature would apply
retrospectively. On the facts in the judgment in the Thirumalai case,
it was held that the repealed provision contained in the Foreign
Exchange Regulation Act, namely, Section 52 would not apply to an
appeal filed long after 1.6.2000 when the Foreign Exchange Management
Act came into force, repealing the Foreign Exchange Regulation Act.
It is significant to note that Section 52(2) of the repealed Act
provided a period of limitation of 45 plus 45 days and no more whereas
Section 19(2) of FEMA provided for 45 days with no cap thereafter
provided sufficient cause to condone delay is shown. On facts, in
that case, the appeal was held to be properly instituted under Section
19, which as has been stated earlier, had no cap to condonation of
delay. It was, therefore, held that the Appellate Tribunal in that
case could entertain the appeal even after the period of 90 days had
expired provided sufficient cause for the delay was made out.
52. The present case stands on a slightly different footing. The
abortive appeal had been filed against orders passed in March- April,
1992. The present appeal was filed under Section 128, which Section
continues on the statute book till date. Before its amendment in 2001,
it provided a maximum period of 180 days within which an appeal could
be filed. Time began to run on 3.4.1992 under Section 128 pre
amendment when the appellant received the order of the Superintendent
of Customs intimating it about an order passed by the Collector of
Customs on 25.3.1992. Under Section 128 as it then stood a person
aggrieved by a decision or order passed by a Superintendent of Customs
could appeal to the Collector (Appeals) within three months from the
date of communication to him of such decision or order. On the
principles contained in Section 14 of the Limitation Act the time
taken in prosecuting an abortive proceeding would have to be excluded
as the appellant was prosecuting bona fide with due diligence the
appeal before CEGAT which was allowed in its favour by CEGAT on
23.6.1998. The Department preferred an appeal against the said order
sometime in the year 2000 which appeal was decided in their favour by
this court only on 12.3.2003 by which CEGAT’s order was set aside on
the ground that CEGAT had no jurisdiction to entertain such appeal.
The time taken from 12.3.2003 to 23.5.2003, on which date the present
appeal was filed before the Commissioner (Appeals) would be within the
period of 180 days provided by the pre amended Section 128, when added
to the time taken between 3.4.1992 and 22.6.1992. The amended Section
128 has now reduced this period, with effect from 2001, to 60 days
plus 30 days, which is 90 days. The order that is challenged in the
present case was passed before 2001. The right of appeal within a
period of 180 days (which includes the discretionary period of 90
days) from the date of the said order was a right which vested in the
appellant. A shadow was cast by the abortive appeal from 1992 right
upto 2003. This shadow was lifted when it became clear that the
proceeding filed in1992 was a proceeding before the wrong forum. The
vested right of appeal within the period of 180 days had not yet got
over. Upon the lifting of the shadow, a certain residuary period
within which a proper appeal could be filed still remained. That
period would continue to be within the period of 180 days
notwithstanding the amendment made in 2001 as otherwise the right to
appeal itself would vanish given the shorter period of limitation
provided by Section 128 after 2001.
53. We, therefore, set aside the order dated 25.2.2004 and remand the
case to CESTAT for a decision on merits. The appeal is allowed in the
aforesaid terms. There will be no order as to costs.
…..………………J.
(A.K. Sikri)
…..………………J.
(R.F. Nariman)
New Delhi;
April 23, 2015.
