29 Oct 2019 2:08 PM GMT
IntroductionTime limitation of filing a suit/appeal/application stands prescribed under provisions of the Limitation Act, 1963. Sections 4 to 24 of the Act deal with exclusion of certain time periods in calculating such prescribed time periods. Section 5 deals with the condonation of delay. It provides that if a 'Court' is satisfied that the appellant/applicant had sufficient cause for...
Time limitation of filing a suit/appeal/application stands prescribed under provisions of the Limitation Act, 1963. Sections 4 to 24 of the Act deal with exclusion of certain time periods in calculating such prescribed time periods. Section 5 deals with the condonation of delay. It provides that if a 'Court' is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within limitation, the Court may admit the same after the prescribed period. It is excluded in the application to the provisions of Order XXI of the CPC, 1908 (Execution Proceedings). Section 29 of the Act deals with 'Savings'. Sub-section 2 of the same states that if the provision in respect to the limitation prescribed for any suit, appeal or application by any special or local law, is different from the period prescribed by the Schedule under the Limitation Act, the provisions of Section 3 shall apply if the Schedule prescribed such period and the provisions contained in sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
It is the correlation between Section 29(2), Section 5 and the concerned provision of a local/special law which deserves a special attention. In a local/special statute book, there may be 3 categories of limitation provisions– First, which provide specific time period for filing petitions and also mention power to condone any delay in filing, Second which provide specific time period for filing petitions but do not have any provision to condone such delay, Third, which provide specific time period for filing petitions and also bar any condonation of delay. While for the first and the third category, the text of the statute book suffices, i.e. that delay in filing when can be condoned and when it cannot be condoned, for the second category, a very relevant question arises –
Whether in absence of a provision to condone delay in filing a petition, can a court to which such a petition is made, condone delay beyond the prescribed time limit?
Two doctrines collide head on to solve this question – Doctrine of necessary implication and Doctrine of express exclusion. Let us see how the judiciary has dealt with this.
• In Hukum Narain Yadav (1974)2 SCC 133, the Supreme Court dealing with Section 81 of the Representation of Peoples Act which deals with limitation for filing Election Petition held that it has to be seen whether the scheme of the special law and the nature of remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on the examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special law. Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and the scheme of the special law exclude their operation.
• In Mangu Ram, (1976) 1 SCC 392, question came up for consideration when the application of Section 5 of the Limitation Act is to be excluded and whether peremptory or imperative language of the special or local law can exclude the application of Section 5, if not otherwise explicitly excluded. The Municipal Corporation of Delhi against the acquittal order, filed an application in the High Court of Delhi under Section 417(3) of CrPC,1898 for special leave to appeal from the order of acquittal. Section 417(4) requiredthat application for special leave should be filed before the expiry of sixty days. The application for special leave was filed 2 days later. The argument was raised that time frame of sixty days was mandatory which could not be relaxed, and it excluded the applicability of Section 5 of the Limitation Act. It was held that the provision of a period of limitation in a howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The provisions of Section 5 were therefore held to be applicable to condone the delay in applying under Section 417(4). This law however applies only to a period of limitation which is given beyond which nothing further is stated as to whether delay may be condoned beyond such period.
• In Sakuru v. Tanaji,(1985) 3 SCC 590, it was held that special statutes may contain an express provision conferring on the Appellate Authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. In the absence of such provisions, Section 5 would have no application.
• In Anwari Basavraj Patil, 1993(1) SCC 636 it was again held that the Representation of Peoples Act is a self-contained code. Even by virtue of Section 29(2) of the Limitation Act, the provisions of the limitation act would not apply to a recrimination notice under Section 97 of that Act. In Para 7, the Court categorically observed that there is no provision in the Representation of Peoples Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under the Act.
• In Mukri Gopalan, (1995) 5 SCC 5, the question arose whether Appellate Authority constituted under Section 18 of Kerala Buildings (Lease and Rent Control) Act, 1965 has the power to condone the delay in filing of the appeal. The Appellate Authority dismissed the appeal on the ground that it had no power to condone the delay. The Supreme Court held that the Appellate Authority acts as a Court and not a persona designatum, it can condone the delay under Section 5 of Limitation Act as the two requirements for the applicability of Section 29 are satisfied, namely, (i) different periods of limitation being prescribed under the local law; and (ii) there is no express exclusion of provisions of Limitation Act. It was held that if there is no express exclusion in the local or special law, then the provisions contained in Sections 4 to 24 of the Limitation Act shall apply by the provisions contained in Section 29(2) of the Limitation Act.
• In Kartick Chandra Das, (1996) 5 SCC 342, provisions of Section 29 of the Limitation Act came up for consideration concerning the letters patent appeal filed in contempt proceedings. It was observed that there is no express exclusion of provisions of Sections 4 to 24 of Limitation Act by a special or local law, thus, on the strength of Section 29(2), Section 5 of Limitation Act becomes applicable.
• In Union of India v. Popular Construction (2001)8 SCC 470 it was held that Section 5 of the Limitation Act is not applicable to Section 34(3) of the Arbitration and Conciliation Act, 1996 in view of an express inclusion within the meaning of section 29(2) of the Limitation Act,1963. Proviso to Section 34(3) provides three months period for making an application. The Court, if satisfied on sufficient cause shown, may entertain the application within a further period of thirty days, but not thereafter. It was held that Court cannot condone delay beyond a period of 30 days and that also only if sufficient cause is shown as to how the applicant was prevented from making application within the period of three months and not 'thereafter'. In Para 10 it was held that it is not essential for the special law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. In Para 13 it was further held that apart from language, "express exclusion" may follow from the scheme and object of the special or local law.
• In Dr.JJ Merchant, (2002) 6 SCC 635, a 3 Judge Bench of the Supreme Court while dealing with the Consumer Protection Act held in Para 13 that for having a speedy trial, legislative mandate of not giving more than 45 days in submitting written statement or version of the case if required to be adhered to. If this is not adhered to, legislative mandate of disposing of cases within 3 or 5 months would be defeated.
• As regards applicability of Section 5 of the Limitation Act, 1963 in the matter of default in deposit of rent as also interpretation of the word 'shall' occurring in the Rajasthan Premises (Control of Rent & Eviction Act, 1950), a 2 judge Bench of the Supreme Court referred the matter to a three Judge Bench. In Nasiruddin (2003) 2 SCC 577, it was held that wherever a special Act provides for extension of time or condonation of default, the Court possesses the power, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so. In absence of such provisions in the Act Court does not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.
• In Gopal Sardar (2004) 4 SCC 252 while dealing with Section 8 of the West Bengal Land Reforms Act, 1955 the Supreme Court in Para 13 held that when in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5, Limitation Act and such provision is not made to an application under Section 8, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act.
• In Fairgrowth Investments Ltd. (2004)11 SCC 472 the Supreme Court while dealing with provisions of the Special Court (Trial of Offences relating to transactions in securities) Act, 1992 held that "exclusion" includes exclusion by necessary implication. The Court considered the fact that condonation of delay was expressly provided in other provisions of the Act (viz., Section 10(3)) but not under the provision in question (viz., Section 4(2)). It was held that the time limit prescribed in Section 4(2) of the Act for filing a petition for objection to a notification issued is mandatory. The Court held that prescribed periods for initiating or taking steps in legal proceedings are intended to be abided by, subject to any power expressly conferred on the Court to condone any delay. It was also held that if the power to condone delay is deemed implicit in every statutory provision, S.29(2) of the Limitation Act would be redundant.
• In Damodaran Pillai (2005)7 SCC 300 it was held that a civil court in the absence of an express power cannot condone the delay. For the purpose of condonation of delay, in the absence of the applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.
• In Western Builders (2006) 6 SCC 239, the Supreme Court held that whenever two enactments are overlapping each other on same area then courts should be cautious in interpreting those provisions. It should not exceed the limit provided by statute. The extent of exclusion is however, really a question of construction of each particular statute & general principles applicable are subordinate to the actual words used by legislature.
• In Singh Enterprises, (2008) 3 SCC 70, the Supreme Court while dealing with Section 35 of the Central Excise Act held that there was no law declared by the Supreme Court that even though the Statute prescribed a particular period of limitation, it can direct condonation. That would render a specific provision providing for limitation rather otiose.
• In Punjab Fibres Ltd., Noida, (2008) 3 SCC 73, a question arose of condonation of delay in filing reference application to the High Court. It was held that section 5 is not applicable. The court followed the decision in Singh Enterprises (2008) 3 SCC 70.
• In Hongo India (2009)5 SCC 791 a 3 Judge Bench of the Supreme Court while dealing with Section 35-H(1) of the Central Excise Act held that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by express reference, it would nonetheless be open to court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. The applicability of the provisions of the Limitation Act is to be judged not from the terms of the Limitation Act but by the provisions of the special law. The question which arose for consideration was whether the High Court has the power to condone delay beyond the period specified in Section 35H of the Central Excise Act. The limitation for an appeal and reference is within 180 days from the date of communication of the decision or order. Because of the provisions and the Act, it was held that the time limit prescribed for making a reference to the High Court is absolute and unextendible by Court under section 5 of the Limitation Act. The Central Excise Act has been held to be a complete Code by itself. The import of "expressly excluded" in section 29(2) was considered, and it was observed that even in the absence of express exclusion, the court can examine the extent of exclusion of Limitation Act by a special law, based on the provisions or the nature of the subject matter.
• In Chaudharana Steels Private Ltd., (2009) 15 SCC 183, the question of delay in filing an appeal under section 35G of the Central Excise Act, 1944 came up for consideration. The Court held that the High Court has no power to condone the delay and followed the decision in Punjab Fibres Ltd.
• In Chhattisgarh SEB, (2010 (5) SCC 23), it was held by the Supreme Court that Section 5 of the Limitation Act cannot apply to Section 125 of the Electricity Act, as the Section specifically provides for a limitation period of 60 days with an extension of 60 days on sufficient cause being shown. Further in view of the language of the proviso to Section 125 of the Electricity Act which uses the expression "within a further period not exceeding 60 days", the Supreme Court had no hesitation to hold that the outer limit for filing an appeal is 120 days and an appeal filed after the expiry of 120 days cannot be entertained.
• In Ketan Parekh (2011 15 SCC 30) while dealing with provisions of FEMA, the Supreme Court held that Section 5 of the Limitation Act cannot be pressed into service in view of the language of Section 35 of the FEMA Act and interpretation of similar provisions by this Court. It was held that the High Court cannot entertain an appeal u/s 35 of the Act beyond 120 days and Section 5 will have no applicability.
• In Anshuman Shukla, (2014) 10 SCC 814, a 3Judge Bench of the Supreme Court held that even if the amendment to Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 was made in 2005, as the court had the power to take suo moto cognizance and call for record of an award at any time, there was no legislative intent to exclude the applicability of section 5 of the Limitation Act. Apart from that, this Court observed that section 19 of the Act of 1983, did not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of the prescribed limitation thereunder and thus, the provisions of section 29(2) are applicable in the absence of such rider, and delay in filing the revision was condoned.
• In Engineer Builder (2014 16 SCC 742) the principle laid down in Popular Construction was extended to Jammu and Kashmir.
• In M/S. Suryachakra Power Corporation Limited (2016 16 SCC 152) the Supreme Court held that section 5 of the limitation act cannot be invoked by this court for entertaining an appeal filed against the decision or order of the tribunal beyond the period of 120 days specified in section 125 of the electricity act and its proviso. It was further held that any interpretation of section 125 of the electricity act which may attract the applicability of section 5 of the limitation act read with section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the tribunal and proviso to section 125 will become nugatory.
• In Hilli Multipurpose Cold Storage, 2018 17 SCC 247 it was held by a 3 judge bench that a District Consumer Forum can grant a further period of 15 days to the opposite party for filing his version or reply but not beyond that. Dr. J.J.Merchant was followed.
• In Baleshwar Dayal Jaiswal (2016)1 SCC 444, It was held that Section 29(2) of the Limitation Act has no application in respect of an appeal under Section 18 of the SARFAESI Act as the statute in question impliedly excludes the applicability of the provisions of the Limitation Act to the extent a different scheme is adopted. It was also held that it is well settled that exclusion of power of condonation of delay can be implied as laid down in Popular Constructions, Hongo India, Gopal Sardar etc.
• In Patel Brothers 2017 (2) SCC 350, a question came up for consideration of the Supreme Court concerning the provisions contained in the Assam VAT Act. It was held that there can be implied exclusion of the provisions of section 29(2) of the Limitation Act. Even in the absence of express exclusion of the provisions of the Limitation Act, it is open to a court to consider the implied exclusion.
• In ONGC v. Gujarat Energy Transmission Corporation Limited, (2017 (5) SCC 42) the Supreme Court while dealing with Section 125 of the Electricity Act again held that delay beyond maximum statutory period of 60 days plus 60 days is non-condonable. Electricity Act, 2003 being a special legislation within meaning of S. 29(2) of Limitation Act, prescription with regard to limitation has to have binding effect and the same has to be followed regard being had to its mandatory nature. Hence, delay beyond said 120 days cannot even be condoned under Art. 142 of the Constitution.
• A three judge bench of the Supreme Court in International Asset Reconstruction (2017 16 SCC 137) while dealing with power of DRT to condone delay held that the pre-requisite for attracting Section 5 is the pendency of a proceeding before a court. Where the proceedings under an Act are before a statutory Tribunal, it cannot be placed at par with proceedings before a court and such Tribunal shall therefore have no powers to condone delay, unless expressly conferred by the Statute creating it.
• Recently in Bengal Chemists (2018 3 SCC 41) the Supreme Court discussed the provisions of Sections 421 and 433 of the Companies Act, 2013 which provide for filing of appeals from the orders of the NCLT within a period of 45 days with a further grace period of 45 days, (i.e. 90 days) subject to the NCLAT being satisfied that the Appellant was prevented by a sufficient cause from filing an appeal within the first 45 days. It was held that the provisions are pre-emptive in nature. Once the period of 90 days expires, the appeal becomes time-barred and the delay cannot be condoned by invoking the provisions of the Limitation Act, 1963.
• A three judge bench of the Supreme Court most recently in Superintending Engineer held that the provisions of section 5 of the Limitation Act are applicable, and there is no express exclusion of the provisions of section 5 and as per section 29(2), unless a special law expressly excludes the provision, sections 4 to 24 of the Limitation Act are applicable.
There are thus clearly a number of judgments by 2 judge benches and 3 judge benches which are diametrically opposite to each other. One series of judgments states that in absence of a provision for condonation of delay, a court cannot condone delay in filing a petition. The other line of judgments states that a court though not under inherent powers but under the doctrine of exclusion that if the provisions of Limitation Act are not expressly excluded, can go ahead and condone delay.
In my view, the second line of judgments collides with legislative autonomy. If the legislature in its wisdom did not provide for any power to courts to condone delay, such provisions cannot be deemed to empower courts to so in absence of expressly excluding Limitation Act. It is trite law that the right to appeal is not a natural or inherent right and it is only a right provided by the statue and therefore it will be governed by the specific provisions provided in the statute limiting the same. (Anant Mills Co. Ltd Vs State of Gujarat, (AIR 1975 SC 1234). It is also beyond any cavil that the question as to whether the provision is directory or mandatory would depend upon the language employed therein. Further it is settled that scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. Statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. It is also a well-settled principle of law that the decision on an interpretation of one statute can be followed while interpreting another provided both the statutes are in pari materia and they deal with identical scheme. Similarly, it is also trite law that when a statute prescribes something to be done in a particular manner, it should be done in that particular manner alone or not be done at all.
Interestingly none of the judgments referred above look deep into a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefore are specified.
The judgment in Superintending Engineer does not deal with the law laid down correctly and does not appreciate various precedents. As there is apparent conflict in views taken by 3 judge benches of the Supreme Court in balancing the collision between doctrine of necessary implication and express exclusion, the issue deserves to be addressed by a 5 judge bench for an authoritative pronouncement.
Namit Saxena is a Lawyer practicing in Supreme Court of India
Views are personal only.