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TMI Blog2011 (7) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... sh R. Agrawal with B. Sheshagopalan, for the Appellant. S/Shri R.V. Desai, Senior Advocate with M.S. Bhardwaj, for the Respondent. [Judgment per : D.Y. Chandrachud, J. (Oral)]. The issue which arises before the Court in these proceedings is whether an Appellant who files an appeal before the High Court under Section 35 of the Foreign Exchange Management Act, 1999 can seek an exclusion of time under Section 14 of the Limitation Act, 1963. 2. A notice to show cause was issued to the Appellant on 12 January 2005 under Section 3(C) of the Foreign Exchange Management Act, 1999 ( the FEMA ). Upon adjudication, a penalty was imposed on the Appellant under Section 13(2) by an order dated 29 February 2008. The Appellant moved the Appellate Tribunal constituted under Section 19. The Tribunal dismissed an application for dispensing with a pre-deposit of the penalty by its order dated 17 July 2008. The Appellant thereupon instituted proceedings under Article 226 of the Constitution before the Delhi High Court. The Delhi High Court dismissed the Petition by a judgment dated 24 September 2008 holding that it had no territorial jurisdiction and that by virtue of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant was prevented by sufficient cause from filing the Appeal within a period of sixty days. Hence, it was urged that since a specific period of limitation has been prescribed by the Foreign Exchange Management Act, 1999 for filing an appeal before the High Court, the provision of Section 14 of the Limitation Act, 1963 would not be attracted. 6. Section 35 of the FEMA stipulates that 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 arising out of such order. Under the proviso, the High Court is empowered, if it is satisfied that the Appellant was prevented by a sufficient cause from filing the appeal within the said period, to allow it to be filed within a further period not exceeding sixty days. Parliament has unequivocally spelt out its intent that while the period of limitation for filing an Appeal before the High Court is sixty days from the date of the communication of the decision or order of the Tribunal, the High Court is vested with the jurisdiction to condone a delay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court to condone a delay occasioned beyond the period specified by the proviso to Section 35 would be excluded by virtue of the specific statutory provision. But merely because the provision of Section 5 of the Limitation Act, 1963 are rendered inapplicable that would not result in an inference that the provisions of Section 14 would not apply. That is simply because Section 14 is not a provision which confers upon the Court a power to condone the delay for sufficient cause but a provision by which a certain period has to be excluded in computing the period of limitation. Hence, there is absolutely no reason or justification for the Court to infer that Section 14 of the Limitation Act, 1963 cannot be applied in relation to the proceedings before the High Court in an Appeal under Section 35 of the FEMA. Section 35 of the FEMA does not in any event expressly exclude the application of Section 14 of the Limitation Act, 1963. 8. In arriving at this conclusion, we are fortified by the judgment of a Bench of three Judges of the Supreme Court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department [2008 (7) SCC 169]. Section 34 of the Arbitration an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Limitation Act are fulfilled, an exclusion of the period provided for therein, would be warranted in determining as to whether the appeal under Section 35 of the FEMA is within limitation. 11. Before Section 14 of the Limitation Act, 1963 can be applied, the ingredients which have been spelt out therein must be demonstrated to exist. Those ingredients have been enunciated in the judgment of the Supreme Court in Consolidated Engineering Enterprises as follows : (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceedings had been prosecuted with the 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. 12. In the present case, the Supreme Court has in its judgment dated 12 April 2010 held that the Appellant was bona fide pursuing his case under Article 226 of the Constitution first before the Delhi High Court and thereupon in appeal before the Supreme Court. The ..... 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