1. Facts narrated in all the appeals are almost same. The facts, which are common in all the appeals and as stated by the appellant, are being stated hereinafter.
2. The appellant is the agency for investigating the offence of money laundering. During the course of investigation Investigating Officer has located with properties acquired out of the proceeds of crime to the tune of Rs.137 Crores. Therefore, the Provisional Attachment Orders under Section 5 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as “the PMLA”), were issued by the Investigating Officer.
3. According to the appellant, the charge against the University in every appeal is that it created global selling degrees, diplomas and certificate of various courses through its established network for which it has not been granted permission by any competent authority. The University engaged several Coordinators functioning all across India for conducting distance education courses. These Coordinators made payments to the University authorities on per student basis, after keeping their commission.
4. As offences under Sections 420, 467, 471, 120B of Indian Penal Code, 1860 (hereinafter referred to as “the IPC”), are scheduled offences, as mentioned in section 2 (1) (y) of the PMLA, the matter was referred to Enforcement Directorate, by Sikkim Police for investigation.
5. Further case of the appellant is that during the course of investigation conducted under the PMLA, it revealed that Eastern Institute for Integrated Learning in Management University, Sikkim, is involved in selling degrees, diplomas and certificate for various courses for which they were not authorized to award. The courses were conducted without adhering to any basic rules and regulations. The University also did not bother to maintain any standard or quality of education/examination before awarding the degree and diploma. The University authorities with the assistance of various national/regional coordinators engaged by them duped thousands of innocent students by fraudulently selling unauthorized degrees, diplomas and certificate through distance education courses. The University was also involved in offering another mode of education known as Collaborative Industry Based Education. The object of the said education was to lure hapless students into grandiose programmes without any approval from any statutory authorities. It is stated that Eastern Institute for Integrated Learning in Management University, Sikkim was created only with the object of duping thousands of innocent students by charging them exorbitant fees for various lucrative courses and offering them degrees which were not recognized by any statutory authority. Some regular courses stated to have been offered by the University are only with a motive to hoodwink the unsuspecting students.
6. Eastern Institute for Integrated Learning in Management University, Sikkim, challenged the provisional attachment order before this High Court in Writ Petition (Crl.) No. 02 of 2015 on the basis of constitution and adjudication by the Member, who according to the petitioner was non-legal. The said writ petition was disposed of on 22.09.2015 in the following manner:
“(i) The Respondent No. 1 shall take appropriate steps with the concerned authorities of the Central Government for appointment of the Judicial Member of the Adjudicating Authority urgently within a period of 3 (three) months and not later than that;
(ii) On appointment of the Judicial Member, the Chairman of the Adjudicating Authority shall constitute the Bench consisting of a Judicial Member keeping in view the observations made above having regard to the nature of the lis and the anxiety expressed by the Petitioner-University;
(iii) Soon after it is constituted, the Bench shall then issue notice upon the Petitioner-University and the Petitioner-University shall appear before the Bench and place before it all grievances expressed in the Petition; and
(iv) Since the proceedings before the Adjudicating Authority was stayed by this Court by order dated 02-04-2015, the period of attachment prescribed under Sub-Section (1) of Section 5 shall exclude the period spent during the pendency of the case before this Court.”
7. According to the appellant, the order of this High Court was complied, a Member (Legal) was appointed as provided under Section 6 of PMLA, and the matter was re-adjudicated and the Provisional Attachment Order was confirmed. Against the said Order, appeals were preferred by the respondents before the Appellate Tribunal, Prevention of Money Laundering (hereinafter referred to as “the Tribunal”) on the ground that the said Confirmation Order was not passed by the Judicial Member. The Tribunal passed order on 15.06.2017 and remanded back the matter to the Adjudicating Authority by setting aside the impugned order by directing the Authority to comply with the order of this High Court and appoint a Judicial Member. The Tribunal held that the impugned order has not been passed by the Judicial Member despite of directions issued by the High Court. The Tribunal also observed that the Member (Legal) may be having the qualifications to become Judicial Member, but facts remains that his appointment was not made for as Judicial Member. The Tribunal further observed that none of the hearing officer was a Judicial Member, within the mandate of judgment of the High Court and the order was without jurisdiction. The Tribunal set aside the same and remanded back the appeals directing the Adjudicating Authority to comply with the directions of the High Court.
8. Against the order of the Tribunal dated 15.06.2017 these appeals have been filed.
9. Before considering the case of the appellant on merit, this Court is required to consider the applications filed by the appellant for condonation of delay in filing the appeals, as all the appeals have been filed with considerable long delay. In Appeal (Crl.) No. 01 of 2018 there is a delay of 456 days. Similarly in other appeals; Appeal (Crl.) No. 01 of 2019, Appeal (Crl.) No. 02 of 2019, Appeal (Crl.) No. 03 of 2019, Appeal (Crl.) No. 04 of 2019 and Appeal (Crl.) No. 05 of 2019 there is delay of 571 days in filing the appeals.
10. The grounds taken by the appellant in all the condonation of delay applications are same. It is stated by the appellant that the appellant has been very vigilant and diligent in pursuing the appeal and that the reasons for delay in filing the appeals were beyond the control of the appellant and as such there are sufficient reasons for condoning the delay. In support of this submission the appellant has given the facts which are reproduced hereinafter:
“(a) The Registry of learned Appellant Tribunal prepared the certified copy and sent the same vide a letter signed on 30.06.2017, through speed post to the office of the Enforcement Directorate, Kolkata.
(b) The impugned Judgment dated 15.06.2017 was received in the office of the Enforcement Directorate, Kolkata on 17.07.2017.
(c) A letter dated 22.08.2017, received from the Registrar, Adjudicating Authority, addressed to the Director- Enforcement conveying inter alia that “the Order of Appellate Tribunal is per incurium, as it has ignored the decision of Hon’ble Supreme Court in case of Pareena Swarup versus Union of India, and Director may take appropriate action to either get the order of the Hon’ble Tribunal stayed, modified, annulled or take appropriate action as deemed fit for giving effect to the Order of the Hon’ble Appellate Tribunal”.
(d) A letter dated 05.09.2017, was sent to Head Office of the Enforcement Directorate, New Delhi by Enforcement Directorate, Kolkata Zonal Office, seeking instruction regarding filing of appeal in Hon’ble Sikkim High Court or otherwise.
(e) The Hon’ble Appellate Tribunal in appeals filed by Rai Foundation and five others directed the respondents vide Order dated 15.09.2017, to file reply within eight weeks and list the matter on 23.03.2017.
(f) Shri N.K Matta, Department Counsel vide his opinion dated 09.10.2017, opined that “since it is difficult to give effect to the directions of the Hon’ble Sikkim High Court regarding Judicial Member we may either challenge the Order of the Hon’ble High Court before the Division Bench, with application for condonation of delay or the Central Government may pass an order giving explanation under Section 6 of PMLA that Member Judicial and / or Member Law are same position”.
(g) Enforcement Directorate, Kolkata sent a letter dated 31.10.2017, to its Head Office, seeking instruction in the matter.
(h) On 13.11.2017, Enforcement Directorate, Kolkata Zonal Office received a letter dated 09.11.2017, from its H.O with direction that the Judgment / Order, dated 22.09.2017, passed by the Hon’ble High Court of Sikkim should be challenged before the Division Bench.
(i) On 17.11.2017 a letter sent to Mr. Karma Thinlay, Central Government Counsel, Sikkim High Court from Enforcement Directorate, Kolkata with request to move a Writ Appeal against the order dated 22.09.2015.
(j) Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim vide his letter dated 09.01.2018, intimated that no appeal shall lie in Sikkim High Court, against any order passed in exercise of criminal jurisdiction. He also instructed to take up the matter with the Ministry of Law, Branch Secretariat, Kolkata.
(k) Letter dated 18.01.2018 sent to H.O of Enforcement Directorate, Kolkata intimating that the matter is being taken up with Ministry of Law, Branch Secretariat, Kolkata, as instructed by Mr. Karma Thinlay.
(l) U.O. note dated 21.01.2018, sent to Ministry of law, Branch Secretariat, Kolkata by Enforcement Directorate, Kolkata.
(m) Ministry of Law, Branch Secretariat, Kolkata vide opinion dated 31.01.2018, opined that it is not a fit case to challenge the Order passed by Hon’ble High Court of Sikkim.
(n) Discussion held between Ministry of Law, Branch Secretariat, Kolkata with Department Official on 12.02.2018.
(o) U.O. note dated 20.02.2018, sent to Ministry of Law, Branch Secretariat, Kolkata, by Enforcement Directorate, Kolkata.
(p) Ministry of Law, Branch Secretariat, Kolkata vide opinion dated 27.02.2018, opined to challenge the Order dated 22.09.2015, before Hon’ble Supreme Court of India.
(q) Opinion dated 22.07.2018, Ministry of Law, Branch Secretariat, Kolkata, received in the office of the Enforcement Directorate, Kolkata on 05.03.2018.
(r) Letter dated 07.03.2018, sent to H.O of the Enforcement Directorate with request to file SLP in the Supreme Court of India.
(s) H.O vide letter dated 04.06.2018, instructed Enforcement Directorate, Kolkata to file Review Petition in Hon’ble Sikkim High Court.
(t) Letter dated 05.07.2018, sent to Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim by Enforcement Directorate, Kolkata with request to draft a Review Petition.
(u) Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim, vide his letter dated 17.07.2018, opined that there is no provision in Cr.P.C. 1973, for filing a revision petition against an order passed by High Court itself and further stated only recourse is to move the Hon’ble Supreme Court.
(v) Letter dated 21.08.2018, sent to Sudesh Joshi, SPP by Enforcement Directorate, Kolkata with request to file review petition.
(w) Learned Deputy Legal Advisor, Kolkata Regional Office, vide her opinion dated 23.08.2018, opined to file appeal against the order passed by the Tribunal.
(x) That on the basis of the opinion dated 23.08.2018, Department decided to file an appeal before the Hon’ble High Court of Sikkim, and accordingly the Department approached the learned SPP’s of Gangtok for the purpose of filing the instant appeal. Further vide email dated 13.11.2018, learned Counsel Jigme Phunchok Bhutia, SPP was instructed to draft the appeal.
(y) That learned Counsel Jigme Phunchok Bhutia, SPP, sent to the draft copy of the appeal for final vetting and sanction to the Regional Office, Kolkata on 23.11.2018.”
11. The respondents in their objection to the condonation of delay applications stated that the applications are not maintainable, in view of the express provision of Section 42 of the PMLA, as provisions of the Limitation Act, 1963 are not applicable especially in view of the Section 29 (2) of the Limitation Act, 1963. It is submitted by the respondents that the PMLA is a self-contained code and is comprehensive Special Legislation containing detailed provisions of investigation, search and seizure, arrest, provisional attachment, filing of complaint and filing of appeals before the Appellate Tribunal and the High Court, whereas the Limitation Act, 1963 is a general law. Thus, Section 5 of the Limitation Act, 1963 has no application in view of the specific proviso of Section 42 of the PMLA. It is also stated that as per Section 42 of the PMLA an appeal can be filed within sixty days from the communication of the decision or order.
Proviso to Section 42 of the PMLA further provides that if the High Court is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, it can allow the appeal to be filed within a further period not exceeding sixty days. Since the appeals have been filed much later, the appeals deserve to be dismissed.
12. The matter was argued for more than one day. Dr. Sonali Gopalrao Badhe, learned counsel for the appellant argued the matter at great length, though she did not appear on the last day. It was submitted by Dr. Badhe that the appellant was sincerely persuading the mater on the advice of the Government Counsel. Only after receipt of communication from the Adjudicating Authority, the appeals have been preferred. The appeals have been filed under Section 42 of the PMLA read with Section 5 of the Limitation Act. She submitted that the provision of Section 71 of the PMLA is also to be seen which provides that “……notwithstanding anything inconsistent therewith contained in any other law for the time being in force”. She said that this clearly provides that provision of the Limitation Act shall also be applicable to the PMLA, as this provision is not inconsistent with the provision of PMLA. She further submitted that though there is considerable delay in filing the appeals but in view of the fact that a huge amount is involved in the matter, the delay in filing the appeals should be condoned. She also submitted that the Hon’ble Apex Court in the matter of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation: MANU/SC/0487/2013: (2013) 7 SCC 439, has observed that the offences of money laundering are in a calculated manner serious threat to the economy of the country. She submitted that in these appeals more than 100 crores of rupees are involved, therefore, delay in filing the appeals deserves to be condoned.
13. Learned counsel for the appellant further referred the judgment in the matter of Principal Secretary, Transport Department, Government of Sikkim -Vs- Narmaya Das: 2006 ACJ 150, which reads as under:
“10. As regards the sufficiency or otherwise of the cause shown in the present case for condonation of delay it is useful to refer to the following decisions of the Hon’ble Supreme Court in Ram Nath Sao Vs Gobardhan Sao. AIR 2002 SC 1201, wherein it has held as follows:
“(11) Thus it becomes plain that the expression „Sufficient Cause’ within the meaning of Section 5 of the Act or Order 22, Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute „sufficient cause’ or not will be dependent upon facts of each case. There cannot be a strait jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal and exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However by taking pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merits. While considering the matter, courts have to strike a balance between resultant effects of the Order it is going to pass upon the parties either way. (Emphasis added)
11. In view of the above, we cannot lose sight of the fact that the object underlying Section 5 of the Act is to enable the court to do substantial justice and as such, the court should approach the question of sufficient cause with the liberal approach while deciding the application under Section 5 of the Limitation Act. A justice-oriented approach is what is necessary while deciding a question of sufficient cause in an application under Section 5 of Limitation Act.
12. Further, it also becomes clear from the above that where arguable points of facts and law are involved the explanation furnished should not be brushed aside taking hyper technical view of the matter. It is indeed well-established that merits of the case may also be taken into consideration in excusing the delay. In Urban Improvement Trust V. Poonam Chand: AIR 1997 Raj 134, it has been held as follows:
“(19) Now it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Limitation Act and dismissing appeals as barred by lapse of time, the courts of law are required to put a glance as a condition precedent on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merits ordinarily efforts should be made to decide the appeals on merits.”
In addition to the above, recent decision of the Hon’ble Supreme Court rendered in Divisional Manager, Plantation Division, Andaman and Nicobar V. Munnu Barrick: AIR 2005 SCW 109, leaves no room for doubt that where serious questions of law are raised by appellants the courts should take a liberal view on the application for condonation of delay.
13. ………. It is well settled that laches and delay defeats equity and justice. However, a meritorious matter should not be thrown out on the ground of technical considerations as well as delay when cause of delay has been shown with reasons by the party concerned. It is also well settled that in the matter of condonation of delay the court should adopt liberal approach and the reasons for adopting such approach has been highlighted in the above foregoing paras keeping in view the decision of Hon’ble Apex Court rendered in Collector, Land Acquisition, Anantnag V. Katiji: AIR 1987 SC 1353, wherein the Supreme Court laid down about the liberal approach to be adopted on principle as it is realised that:
(1) Ordinarily a litigant does not stand to benefit by lodging and appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) „Every day’s delay must be explained’ does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common-sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately; or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
14. Therefore, keeping in view the above legal position and the peculiar facts and circumstances of the case in hand, we are of the opinion that sufficient cause has been shown by the petitioner department for condoning the delay in the institution of the present appeal. Accordingly, we are inclined to condone the delay of 853 days and allow the application in the interest of substantial justice.”
14. Learned counsel for the appellants further submitted that if the applications for condonation of delay under Section 42 of the PMLA read with Section 5 of the Limitation Act are not considered by this Court, it will cause serious prejudice and respondents will sway away with the properties and will not be available for the purpose of trial. She also submitted that the proceeds of crime are more than 100 crores of rupees and the appellant has a very good case on merit, therefore, the applications for condonation of delay should be allowed.
15. Mr. Shakeel Ahmed, Mr. Ajay Rathi and Ms. Gita Bista, learned counsel for the respondents vehemently opposed the delay condonation applications. They submitted that provisions of Section 42 of the PMLA clearly mandates that the appeal has to be filed within 60 days but in terms of its proviso further 60 days’ grace period can be granted by the High Court (who is appellate authority in terms of Section 42 of the PMLA) to entertain the appeal but not further period not exceeding to 60 days. The proviso to Section 42 of the PMLA makes the position crystal clear that the High Court, being an Appellate Court in terms of Section 42 of the PMLA, has no statutory power to allow the appeal to be presented beyond the further period not exceeding 60 days. The language used in Section 42 of the PMLA and its proviso makes the position clear that the legislature intended the High Court, while acting as an appellate court, to entertain the appeal by condoning delay only upto 60 days after the expiry of 60 days which is the normal period for preferring an appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act, 1963 from the provisions of the PMLA as crucial word/ capping ‘further period not exceeding sixty days’ has been used in the proviso of Section 42 of the PMLA by the legislation. They submitted that in view of the specific proviso of Section 42 of the PMLA, the High Court has no statutory discretionary power to condone the delay beyond 60 days as stipulated in the said proviso. Learned counsel for the respondents further submitted that many other Special Acts like the Arbitration & Conciliation Act, 1996, Foreign Exchange Management Act, 1999, Securities and Exchange Board of India Act, 1992, the Companies Act, 2013, the National Green Tribunal Act, 2010, the Income Tax Act, 1961, the Central Excise Tax Act, 1944, and the Electricity Act, 2003 have similar provisions wherein, being Special Acts, certain period of limitations with the clear words ‘Not Exceeding’ or ‘But not thereafter’ have been provided in these statutes itself which are related to filing of an Appeal/Objections after the lapse of the prescribed statuary period of limitation. Section 35 of FEMA, 1999 has almost identical and similar wordings as compare to section 42 of the PMLA. Both section 35 of FEMA, 1999 and PMLA provides period of filing of appeal against the order of Tribunal within sixty days with the proviso of a further period not exceeding sixty days.
16. In support of their submissions, the learned counsel for the respondents relied on the following judgments:
(i) (2019) 2 SCC 455: Simplex Infrastructure Ltd. Vs. Union of India,
(ii) (2018) 3 SCC 41: Bengal Chemists and Druggists Association Vs. Kalyan Chowdhury,
(iii) (2017) 5 SCC 42: Oil and Natural Gas Corporation
Ltd. Vs. Gujarat Energy Transmission Corporation Ltd. & Ors.,
(iv) (2010) 5 SCC 23: Chhatisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and Others,
(v) (2009) 5 SCC 791: Commissioner of Customs and Central Excise Vs. Hongo India Private Ltd. & Anr.,
(vi) (2001) 8 SCC 470: Union of India Vs. Popular Construction Co.,
(vii) (2009) 317 ITR 305 ALL: Commissioner of Income Tax-I & Ors. Vs. Mohd. Farooq & Ors.,
(viii) (1999) 8 SCC 532: Lachhman Das Arora Vs. Ganeshi Lal & Ors.,
(ix) MANU/GT/0074/2014-By Principal Bench of National Green Tribunal consisting of Chairperson, Member Judicial and three Members (Expert): Sunil Kumar Samanta Vs. West Bengal Pollution Control Board,
(x) AIR 2017 KER 12: Kavitha G. Pillai Vs. Joint Director, (xi) (2011) 15 SCC 30: Ketan V. Parekh Vs. Special Director Directorate of Enforcement and Anr.,
(xii) (2017) 140 SCL 40 (Bombay): Chhagan Chandrakant Bhujbal Vs. Union of India,
(xiii) MANU/RH/0070/2019: Anoop Bartaria Vs. Deputy Director Enforcement,
(xiv) (2007) 2 SCC 322: D. Gopinathan Pillai Vs. State of Kerala & Anr., and
(xv) (2008) 7 SCC 619: Tata Motors Limited Vs. Pharmaceutical Products of India Ltd. & Anr.
17. I have considered the submissions of learned counsel for the parties.
18. Against the order of the Appellate Tribunal an appeal may be filed in the High Court under Section 42 of the PMLA. Section 42 of the Act is as follows:
“42. Appeal to High Court.— Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law or fact arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
Explanation.—For the purposes of this section, "High Court" means—
(i) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and
(ii) Where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain.”
19. From the bare perusal of this Section, it is clear that if any person is aggrieved by any decision or order of the Appellate Tribunal, he may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him. Proviso to this Section provides that if the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period of sixty days, the High Court may allow it to be filed within a further period not exceeding sixty days. Thus, the proviso clearly mandates the High Court not to allow the appellant to file an appeal after a further period of sixty days.
20. We can say same things in these words also. The PMLA has clearly given the power to the High Court to condone the delay of sixty days in filing the appeal. Under Section 42 of the PMLA, an appeal can be filed within a period of sixty days and beyond the period of sixty days the Act has given power to the High Court to entertain an appeal within a further period not exceeding sixty days. At the same time the PMLA has made it clear that the High Court cannot entertain an appeal beyond further period of sixty days, thus, the permissible limit of extended period of sixty days is permissible. The legislation has made it very clear that the High Court can allow appeal to be filed within a further period not exceeding sixty days. “not exceeding sixty days” clearly means that no appeal can be entertained after exceeding period of sixty days.
21. The Hon’ble Supreme Court of India has dealt with the issue of condonation of delay under section 35 of the Foreign Exchange Management Act, 1999, which is same as Section 42 of the PMLA, in a case titled as Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Anr., reported in (2011) 15 SCC 30. The Hon’ble Supreme Court of India held as under:- "18. The question whether the High Court can entertain an appeal under Section 35 of the Act beyond 120 days does not require much debate and has to be answered against the appellants in view of the law laid down in Union of India v. Popular Construction Co., (2001) 8 SCC 470, Singh Enterprises v. CCE, (2008) 3 SCC 70, CCE & Customs v. Punjab Fibres Ltd., (2008) 3 SCC 73, Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169, CCE & Customs v. Hongo India (P) Ltd., (2009) 5 SCC 791 and Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23."
22. In similar cases which came before the Hon’ble Supreme Court in which the Hon’ble Supreme Court has clearly held that delay cannot be condoned where legislation has made its intention clear that „not exceeding’ and „but not thereafter’ etc.
23. In Simplex Infrastructure Ltd. Vs. Union of India: (2019) 2 SCC 455, the Supreme Court has held that delay beyond the three months plus thirty days under Section 34 of the Arbitration Act cannot be condoned. The Hon’ble Supreme Court held as under:
“7. The issue which has been raised before this Court is whether the learned Single Judge was justified in condoning a delay of 514 days by the respondent in filing the application under Section 34. In dealing with this issue, this Court needs to assess whether the benefit of Section 5 and Section 14 of the Limitation Act can be extended to the respondent, and if so, whether a delay beyond the specific statutory limitation prescribed under Section 34(3) of the 1996 Act could be condoned.
X X X
18. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words “but not thereafter” in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate.
X X X
21. Under the circumstances, we are of the considered opinion that in view of the period of limitation prescribed in Section 34(3), the learned Single Judge of the High Court was not justified in condoning the respondent’s delay of 514 days in filing the application. The judgment rendered by the learned Single Judge of the High Court of Calcutta on 27-4-2016, in Union of India v. Simplex Infrastructures Ltd. [Union of India v. Simplex Infrastructures Ltd., 2016 SCC OnLine Cal 12045] is set aside and the appeal is allowed. The petition under Section 34 stands dismissed on the ground that it is barred by limitation. There shall be no order as to costs. ”
24. Similarly in the matter of Bengal Chemists and Druggists Association vs. Kalyan Chowdhury: (2018) 3 SCC 41, the Hon’ble Supreme Court held that limitation period of 45 days in Section 421 (3) plus additional 45 days grace period are peremptory and mandatory nature and no further time can be granted beyond this total period. The Supreme Court held as under:
“4. A cursory reading of Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply “as far as may be”. In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply.
5. Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of the learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time-limit of 45 days, which, as has been pointed out by us above, is peremptory in nature.
6. We are fortified in this conclusion by the judgment of this Court in Chhattisgarh SEB v. CERC [Chhattisgarh SEB v. CERC, (2010) 5 SCC 23] . The language of Section 125 of the Electricity Act, 2003, which is similar to the language contained in Section 421(3) of the Companies Act, 2013, came up for consideration in the aforesaid decision. The issue that arose before this Court was whether Section 5 of the Limitation Act can be invoked for allowing the aggrieved person to file an appeal beyond 60 days plus the further grace period of 60 days. This Court held that Section 5 cannot apply to Section 125 of the Electricity Act in the following terms: (SCC p. 32, para 25)
“25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits, etc. The use of the expression “within a further period not exceeding 60 days” in the proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days.”
The aforesaid judgment was reiterated and followed in ONGC Ltd. V. Gujarat Energy Transmission Corpn. Ltd. [ONGC Ltd. V. Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42: (2017) 3 SCC (Civ) 47], SCC at para 5.
7. It now remains to deal with the decisions cited by the learned counsel appearing on behalf of the appellant. The first is the judgment in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry [Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry, (1981) 2 SCC 646: (1981) SCC (Cri) 574] . In that case, a transfer petition was filed under Section 25 CPC, 1908 in this Court. A preliminary objection was taken stating that in view of Sections 21 and 21-A of the Hindu Marriage Act, 1955, Section 25 would not be applicable. This was turned down by this Court stating that Section 21 would not apply to substantive provisions of the Code as apart from procedural provisions. Equally, Section 21-A of the Hindu Marriage Act, 1955 only dealt with transfers “in certain cases”. This being so, the wide and plenary power conferred on this Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one civil court in one State to another civil court in any other State was held not to be entrenched upon by Sections 21 and 21-A of the Hindu Marriage Act. We fail to see how this judgment, in any manner, furthers the proposition sought to be canvassed on behalf of the appellant, which is that Section 5 of the Limitation Act would continue to apply even after a second period of 45 days is peremptorily laid down. This judgment, therefore, does not carry the matter any further.
8. Reliance placed on Partap Singh v. Directorate of Enforcement [Partap Singh v. Directorate of Enforcement, (1985) 3 SCC 72: 1985 SCC (Cri) 312: 1985 SCC (Tax) 352] is equally misplaced. In this case, Section 37 of the Foreign Exchange Regulation Act, 1973 was involved. Section 37(2) provides that the provisions of the Code relating to searches shall, so far as may be, apply to searches directed under Section 37(1). This Court held that the expression “so far as may be” has always been construed to mean that those provisions may generally be followed to the extent possible. In the fact scenario of that case, it was held that to give full meaning to the expression “so far as may be”, sub-section (2) of Section 37 should be interpreted to mean that broadly the procedure relating to search as enacted in Section 165 shall be followed.
9. This case again does not take the matter any further. In fact, the ratio of the judgment as far as this case is concerned is that the expression “so far as may be” only means to the extent possible. If not possible, obviously the Limitation Act would not apply. We have already held that it is not possible for Section 5 of the Limitation Act to apply given the peremptory language of Section 421(3).
10. The third judgment is Mangu Ram v. MCD [Mangu Ram v. MCD, (1976) 1 SCC 392: 1976 SCC (Cri) 10] . In this judgment, Section 417 of the Code of Criminal Procedure, 1898 provided for special leave to appeal from an order of acquittal. Section 417(4) required that the application for special leave should be made before the expiry period of 60 days from the date of the order of acquittal. Applying Section 29(2) of the Limitation Act, this Court held that Section 5 of the Limitation would not be impliedly excluded in such case despite the mandatory and peremptory language contained in Section 417(4) CrPC. This Court held that all periods of limitation are cast in such mandatory and peremptory language and, therefore, Section 5 could not be said to be impliedly excluded.
11. This case again is wholly distinguishable. It 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 the present case, Section 421(3) does not merely contain the initial period of 45 days, in which case the aforesaid judgment would have applied. Section 421(3) goes on to state that another period of 45 days, being a grace period given by the legislature which cannot be exceeded, alone would apply, provided sufficient cause is made out within the aforesaid grace period. As has been held by us above, it is the second period, which is a special inbuilt kind of Section 5 of the Limitation Act in the special statute, which lays down that beyond the second period of 45 days, there can be no further condonation of delay. On this ground therefore, the aforesaid judgment also stands distinguished.
12. One further thing remains — and that is that the learned counsel for the appellant pointed out the difference between the expression used in the Arbitration Act as construed by Popular Construction [Union of India v. Popular Construction Co., (2001) 8 SCC 470] and its absence in the proviso in Section 421(3). For the reasons given above, we are of the view that this would also make no difference in view of the language of the proviso to Section 421(3) which contains mandatory or peremptory negative language and speaks of a second period not exceeding 45 days, which would have the same effect as t
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he expression “but not thereafter” used in Section 34(3) proviso of the Arbitration Act, 1996.” 25. In Chhatisgarh State Electricity Board vs. Central Electricity Regulatory Commission and Others: (2010) 5 SCC 23, the Hon’ble Supreme Court held that outer limit for filing of an appeal is 120 days. No provision in the Electricity Act, 2003 in which court can entertain an appeal after more than 120 days delay, as under: - ”25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits, etc. The use of the expression “within a further period of not exceeding 60 days” in the proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. X X X 32. In view of the above discussion, we hold 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. 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. ” 26. A larger Bench of the Hon’ble Supreme Court in Commissioner of Customs and Central Excise vs. Hongo India Private Ltd. & Another: (2009) 5 SCC 791, held that High Court has no power to condone delay beyond period specified in Section 35 H of the Central Excise Act. It is held as under: - “32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.” 27. In view of the above discussion, this Court is of the view that the High Court cannot breach statutory mandate and cannot make the provisions of Limitation Act applicable. Consequently, the appeals filed by the appellant are held not maintainable as the same have been filed beyond the prescribed period of limitation as provided under Section 42 of the PMLA. 28. The applications for condonation of delay in filing the appeals are rejected. Consequently, all the appeals stand dismissed. Applications for stay also stand dismissed. 29. Before parting, I put a word of appreciation to those Advocates who have appeared in this case, namely Dr. Sonali Gopalrao Badhe, Mr. Shakeel Ahmed, Mr. Ajay Rathi and Ms. Gita Bista. Though I appreciate the assistance given by Dr. Sonali Gopalrao Badhe to the Court but her sincere efforts could not help the appellant. I have no hesitation in saying that officers/officials involved in the matter were either negligent or did not work for the interest of the institution. Delay could have been avoided. Therefore, I leave open to the Director of the appellant/ competent authority to get an enquiry conducted and take appropriate action in the matter. 30. Assistant Director of the appellant at Kolkata is directed to send a copy of this order to the Director at Headquarter.