In B.K. Educational Services (P) Ltd. v. Parag Gupta and Associates, (2019) 11 SCC 633 it was held as follows: “It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Insolvency and Bankruptcy Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. “The right to sue”, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.” Vashdeo R. Bhojwani v. Abhyudaya Coop. Bank Ltd., (2019) 9 SCC 158.
Tag Archives: Delay Condonation
In Assam Urban Water Supply and Sewerage Board v. Subash Projects and Marketing Ltd., (2012) 2 SCC 624, an argument was raised with reference to Section 43 of the Arbitration Act that provisions of Limitation Act, 1963 have been made applicable to Arbitrators and when application is made for setting aside award hence all provisions of Act, 1963 should be held applicable but it was negative. In aforesaid judgment an attempt was made to attract Section4 of the Limitation Act, but it was observed as under:
“The above section enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. The crucial words in Section 4 of the Limitation Act are ‘prescribed period’. Section 2 (j) of the Limitation Act defines ‘period of limitation’ which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act. Section 2 (j) of the Limitation Act when read in the context of Section 34(3) of the Arbitration Act, becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in the proviso that follows sub-section (3) of Section 34 of the Arbitration Act is not the period of limitation and therefore, not ‘prescribed period’ forf the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the Arbitration Act being not the period of limitation or, in other words, ‘prescribed period’, section 4 of the Limitation Act is not at all attracted.
In Commissioner, M.P. Housing Board v. Mohanlal and Company, AIR 2016 SC 3592, issue of condonation of delay in respect of an application under Section 34 of the Arbitration and Conciliation Act came up for consideration before the Court. After Arbitral Award was given on 11.11.2010, contractor being aggrieved therefrom, instead of filing application/objection under Section 34(1) of the 1996 Act, preferred to file an application under Section 11 of the Act, 1996, in High Court seeking appointment of Arbitrator to adjudicate the dispute. Application was rejected by the Court observing that there is already an arbitral award, hence no further action under Section 11 of Act, 1996 can be allowed. Thereafter contractor filed objection before the Court challenging award on 26.09.2011. He also filed an application under Section 14 requesting to exclude time consumed in the proceedings before High court when he filed application under Section 11 and the same was rejected. That application was allowed by the District Judge taking recourse to Section 141 of the Limitation Act. M.P. Housing Board challenged order of District Judge in Civil Revision Before High Court but failed and that is how matter came to Supreme Court. Relying on Union of India v. Popular Construction company, (2001) 8 SCC 470, Court held that period of limitation under Section 34(3) is mandatory and would bar application of Section 5 of the Limitation Act. Suman Devi v. Addl. Commissioner, 2019 (132) ALR 471.
Initially, the appeal was presented in time and it was for the reason of removing the discrepancies that the period of additional 6 days went by. During this period of six days, the appellant has shown that he was running from pillar to post to remove the discrepancies and in the circumstances, the view taken by the Learned Real Estate Appellate Tribunal, Lucknow appears to be harsh. It can also be seen that it is settled principle of law that discretion should be exercised in favour of hearing rather than shutting it out when there was a delay of only five days in filing the appeal and the appellant was making the best efforts to remove the discrepancies as pointed out by the office of the Appellate Tribunal and immediately thereafter he with all promptitude took necessary steps to file the appeal without any inordinate delay. The circumstances should have been considered in its proper perspective by the Appellate Tribunal. M/s Capital Infra Projects Pvt. Ltd. v. Surinder Bhaiya, 2018 (131)ALR 182.
The Andhra Pradesh High Court in Sajida Begum v. State Bank of India, AIR 2013 AP 24 in holding the tribunal to be court has relied on Sections 22 and 24 of the Recovery of Debts Due to Banks and Financial Institutions Act. Section 22 vests power of Civil Court on the Tribunal only for purposes mentioned therein, such as summoning witnesses etc. and deems Tribunals to be courts for specified purposes, such as for Sections 193, 196 and 228 of the Indian Penal Code and Section 195 of the Criminal Procedure Code. These provisions may not be conclusive of the question of the Tribunal being court for section 29(2) of the Limitation Act without further examining the scheme of the statutes in question. In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646, the Court examined the scheme of the two Acts in question and held that the tribunal was a court but not a civil court for purposes of Section 24 of the CPC. Power of condonation of delay was expressly applicable by virtue of Section 18(2) of the SARFAESI Act read with proviso to Section 20(3) of the RDB Act and to that extent, the provisions of Limitation Act having been expressly incorporated under the special statutes in question, Section 29(2) stands impliedly excluded. Even though Section 5 of the Limitation Act may be impliedly inapplicable, principle of Section 14 of the Limitation Act can be held to be applicable even if Section 29(2) of the Limitation Act does not apply as laid down by the court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, (2008) 7 SCC 169.
Delay in filing an appeal under Section 18(1) of the SARFAESI Act can be condoned by the Appellate Tribunal under proviso to Section 20 (3) of the RDB Act read with Section 18(2) of the SARFAESI Act. Baleshwar Dayal Jaiswal v. Bank of India, 2015 (112) ALR 645.