19IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.19289 of 2010 (O&M) Date of decision:29.08.2011 State of Haryana, through Assessing Authority, Office of Deputy Excise and Taxation Commissioner (Sales Tax), Panchkula, Haryana, and others. ...Petitioners versus Hindustan Machine Tools Limited, HMT Bhawan, No.59, Bellary Road, Bangalore, through its Managing Director, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Satbir Singh Goripuria, DAG, Haryana, for the petitioners. Mr. Avneesh Jhingan, Advocate, and Mr. Khagesh Gautam, Advocate, for respondent No.1. Mr. Ajay Kaushik, Advocate, for respondent No.2. None for respondents 3 and 4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The issue of maintainability of appeal arises on the issue of limitation. An appeal filed against the order of Board for Industrial & Financial Reconstruction (BIFR) under the Sick Industrial Companies (Special Provisions), Act (SICA) was presented along with an application to condone the delay under Section 5 of the Limitation Act. Civil Writ Petition No.19289 of 2010 (O&M) - 2 - The provision for an appeal under SICA is contained under Section 25 of the Act as follows:- “25. Appeal (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the appellate authority. Provided that the appellate authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) On receipt of an appeal under sub-section (1), the appellate authority may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against or remand the matter to the Board for fresh consideration.” The proviso makes it possible for the Appellate Authority to entertain an appeal after the period of 45 days, but not after 60 days from the date unless it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Where the statute itself provides for a particular period of limitation and also gives a scope for relaxation the period and stipulates beyond time, no further relaxation will be possible than what the Act itself lays down. This point came to be decided by the Civil Writ Petition No.19289 of 2010 (O&M) - 3 - Hon'ble Supreme Court while dealing with the provisions of the Arbitration Act that contains a reference to setting aside of an award under Section 34. Section 43 of the Arbitration and Conciliation Act states specifically that the Limitation Act of 1963 is applicable. However, Section 34(3) which provides for a period of limitation of 3 months from the date of passing of the award for an application to be made for setting aside the award also provides that a further period of 30 days will be available if reasons are given for not filing the petition within 3 months' period. Dealing with the situation whether Section 5 could be invoked by a party, who filed such an application beyond a period of 30 days after the initial period of 3 months had expired, the Hon'ble Supreme Court has held in State of Goa Versus M/s.Western Builders-(2006) 6 SCC 239 and M/s.Consolidated Engineering Enterprises Versus Principal Secretary (Irrigation Department) and others-(2008) 7 SCC 169 that Section 5 cannot be attracted when the statute provides for a particular period for condonation of delay. 2. The learned counsel for the petitioners refers to a decision of the Hon'ble Supreme Court in Kailash Versus Nanhku and others-2005 (4) Supreme Court Cases 480, to say that Section 5 could be invoked even in such a situation. The applicability of Section 5 was considered in the context of an application filed under Order 8 Rule 1 CPC and the amendment that has been brought about by Act 22 of 2002 that provides for 90 days for filing a written statement and sets out also a further period of 30 days for giving an extension of time. In Salem Advocate Bar Association Tamil Nadu Versus Union of India- AIR Civil Writ Petition No.19289 of 2010 (O&M) - 4 - 2005 Supreme Court 3353, the Hon'ble Supreme Court has stated that the time prescribed for filing the written statement was only directory and not mandatory and, therefore, the extension of time that a person sought under Section 5 could always be invoked. What is possible for a procedure in law cannot be applied equally to substantive law that sets out a specific period of limitation. This has been considered by the Hon'ble Supreme Court even earlier in Union of India Versus M/s Popular Construction Company-JT 2001 (8) SC 271, that made inapplicable the application for condonation of delay under Section 5 for filing a petition or setting aside the award. The same principle could apply to this as well. I am not prepared to join issues on the merits contended by the State and if the Appellate Authority had dismissed it on the point of limitation, I am of the view that the decision was correct and would require no intervention. The issue of extending the period of limitation itself cannot be done through a writ petition, as held in a decision of the Delhi High Court in Anil Mehra Versus East India Weaving Limited-(2001) 2 RAJ 323. The writ petition filed by the State is, for the above reasons, dismissed (K. KANNAN) JUDGE 29.08.2011 sanjeev