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TMI Blog2015 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... la and Anr. reported in [1996 (2) TMI 532 - SUPREME COURT] only because no argument was advanced as regards the applicability of doctrine of merger. The Hon’ble Supreme Court entertained the SLP and granted leave to Appeal as also stay. The time spent in prosecuting the proceedings before the Hon’ble Supreme Court and which is bonafide was permitted to be excluded. Pertinently, the test laid down is applicable in a case where a Appeal is filed that being a continuation of the lis, its pendency can be relied upon to claim the benefit. A Writ Petition's pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neither it was entertained nor any interim relief was granted, leave alone admitting it. If the Petitioner decides not to approach the appropriate, correct or right Forum, but tries to bypass it by filing a Writ Petition and allows the time to run, then, it cannot request this Court in its discretionary and equitable jurisdiction to set right a wrong, for which it is itself responsible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red as bonded store. The Petitioner has been earning valuable foreign exchange for the Country. It submits that it is strictly adhering to the terms and conditions of the licence. It relies on a licence styled as private bonded licence issued in its favour by the Mumbai Customs. The licence was granted from 20th March, 2006 to 25th July, 2006. The Petitioner has been carrying on business and without any interruption. A dispute arose under a letter of demand dated 1st April, 2011, after which, the Department stopped operations of the Petitioner and did not issue the licence. The dispute was brought before this Court by way of Writ Petition being Writ Petition No. 1705 of 2011 and when it was being contested, the third Respondent issued the licence to the Petitioner subject to an undertaking. The Petitioner is abiding by that undertaking and regularly paying the charges. The payment has been made on Merchant Over Time basis (MOT) and after referring to the nature of these charges, what the Petitioner is relying are letters and communications in relation to, firstly payment of these charges and secondly about change in working hours. The Petitioner is relying upon certain clarificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations, one seeking condonation of delay and the other for stay of the recovery of the amount pursuant to the order dated 27th June, 2011. A personal hearing was given to the Petitioner on the application filed seeking condonation of delay. 6) We are not as much concerned with the development pertaining to recovery and payment of certain sums as set out in para 20 of the Petition. We are only concerned with the legality and validity of the order dated 27th December, 2012, by which, the application made by the Petitioner seeking condonation of delay has been dismissed. 7) It is this order, which is challenged in this Writ Petition on several grounds. Mr. Dhond learned Senior Counsel appearing on behalf of the Petitioner submits that the impugned order is contrary to law. He submits that the Petitioner applied for condonation of delay in filing of the statutory Appeal. The Petitioner submitted that the said application be considered sympathetically and reasonably, because the delay in filing the same has been occasioned on account of the Petitioner being advised to file a Writ Petition under Article 226 of the Constitution of India in this Court to challenge the order in origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962 to allow presentation of the Appeal beyond a total period of 90 days. If the delay is of 108 days, then, the Appellate Authority has no jurisdiction to condone it. Mr. Dhond submits that the Appellate Authority has not dismissed the statutory Appeal only by such findings and conclusions. The Appellate Authority has gone ahead and blamed the Petitioner for not adducing any evidence indicating that they were prevented by sufficient cause from presenting the Appeal within the period of 60 days or within a further period of 30 days. Mr. Dhond submits that it is only the inapplicability of section 5 of the Limitation Act beyond the period of 90 days, which resulted in dismissal of the Petitioner's Appeal. 9) However, the Appellate Authority failed to apply its mind to the specific averment and assertion in the Miscellaneous Application for condonation of delay, wherein, the Petitioner invoked section 14(2) of the Limitation Act, 1963. There is absolutely no reference to this ground in para No. 9 of the Miscellaneous Application. Therefore, the impugned order is vitiated by an error of law apparent on the face of the record. 10) Mr. Dhond submits that if benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time as envisaged by section 14(2). Whereas, in section 5, there is an element of discretion. For all these reasons, he submits that the impugned order be quashed and set aside and the Writ Petition be allowed. 13) Mr. Dhond has placed reliance upon the following decisions in support of his contentions: 1. Mukri Gopalan vs. Cheppilat Aboobacker (1995) 5 SCC 5. 2. Rethinasamy vs. Komalavalli and Another AIR 1983 (MAD) 45. 3. P. Sarathy vs. State Bank of India (2000) 5 SCC 355. 4. The Commissioner of Sales Tax, U. P. vs. M/s. Madan Lal Das and Sons, Bareilly (1976) 4 SCC 464. 5. Union of India vs. Epcos India Pvt. Ltd. ( 2013) 290 ELT 364. 6. Rajkumar Shivhare vs. Union of India (2011) 273 ELT 75. 7. A. E. Industries vs. Union of India and Ors. ( 1988) 35 ELT 620 (Bom.). 8. Steel Authority of India vs. Collector of Excise (2001) 10 SCC 601. 9. Wamanrao Deshmukh vs. Dinkarrao Deshmukh (1998) 7 SCC 447. 10. ITC vs. Collector of Central Excise (1997) 11 SCC 660. 11. U. P. Rajya Vidyut Parishad Karmachari Sangh vs. State of U. P. and Others (1999) SCC (L S) 1081. 12. Coal India Limited vs. Ujjal Transport Agency and Another (2011) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarts running from the date of communication of the order and it is only in exceptional circumstances that the time stops running. If the Petitioner does not avail of the statutory remedy within time and the Commissioner (Appeals) having no further power to condone the delay, then, no assistance can be derived from section 5 of the Limitation Act, 1963 or section 14 of the said Act. The provisions in the limitation Act do not enable the Petitioner to get over section 128 of the Customs Act, 1962. Once this is the admitted factual and legal position, then, the order under challenge cannot be said to be either perverse or vitiated by any error of law apparent on the face of the record. The impugned order has been passed by the commissioner (Appeals) strictly within the parameters determined by law. Hence, the Writ Petition is devoid of merits and must be dismissed. 15) With the assistance of the learned Counsel appearing for the parties, we have perused the Writ Petition and the relevant Annexures thereto. We have perused carefully the impugned order. We have also perused the decisions brought to out notice. 16) In the light of the admitted factual position, the only question t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by an officer lower in rank to the Commissioner of Customs. That Appeal must be filed within 60 days. This period was substituted by the Finance Act, 2001 (14 of 2001) for the words within three months . By the Finance Act, 2001, the proviso to subsection (1) of section 128 of the Customs Act, 1962 was substituted. The Commissioner was empowered to allow presentation of the Appeal within a further period of 30 days on recording his satisfaction that the Appellant was prevented by sufficient cause from presenting the Appeal within the aforesaid period of 60 days. Thus, the period of limitation is prescribed by subsection (1) of section 128 of the Customs Act, 1962. The proviso merely enables the Commissioner (Appeals) to allow presentation of such Appeal within a further period of 30 days. The proviso does not mean that the Appeal can be presented after 60 days. If it is presented beyond the period of 60 days but within the further period of 30 days as stipulated by the proviso, then, the Appellant has to satisfy the Commissioner (Appeals) [Appellate Authority] that there was sufficient cause which prevented him from presenting the Appeal within the period of 60 days. We do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be dismissed, although limitation has not been set up as a defence. Section 5 of the Limitation Act, 1963 only extends the prescribed period of limitation for filing of an Appeal or Application, other than the one under Order XXI of the Code of Civil Procedure, 1908 and such proceeding can be admitted after the prescribed period, if the Appellant or the Applicant satisfies the Court that he/she had sufficient cause for not preferring the Appeal or making the Application within such period. Thus, the prescribed period of limitation by law such as section 128(1) of the Customs Act, 1962 is extended in certain cases. 25) By section 29 and particularly subsection (2) thereof, it is evident that if any special or local law prescribes, for any Suit, Appeal or Application, a period of limitation different from the period prescribed by the Schedule to the Limitation Act, 1963, the mandatory stipulation in section 3 of the said Act shall apply as if such period was prescribed by the Schedule of the said Act. Then, for determining period of limitation prescribed for the legal proceeding by any special or local law, provisions contained in sections 4 to 24 (inclusive) shall apply on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided further that, the Tribunal may refuse to refer the case of the High Court, if the person or, as the case may be, the Commissioner fails to submit the paper book and other documents required by the Tribunal, within a period of three months from the date of order of the Tribunal served on that person or, as the case may be, the Commissioner. (2) If upon receipt of an application under subsection (1), the High Court is not satisfied as to the correctness of the decision of the Tribunal, it may require the Tribunal to state the case and refer it; and accordingly, on receipt of any such requisition the Tribunal shall state the case and refer it to the High Court. (3) If the High Court is not satisfied that the statement in the case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Tribunal to make such additions thereto or alterations therein, as the High Court may direct in that behalf. (4) The High Court, upon the hearing of any such case, shall decide the question of law raised thereby, and shall deliver is judgment thereon containing the grounds on which such decision is founded, and shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses to state the case which it has been required to do, on the ground that no question of law arises, the person who has invoked the Tribunal s jurisdiction under section 61 may within 90 days of such refusal, either withdraw his Application or apply to the High Court against such refusal. Thereafter, there are further subsections and which enable this Court to exercise its jurisdiction and answer the question or decide it in terms of the other sub sections. 13 The argument before us is that though sub section (1) of section 61 in its first part contains a stipulation that the person can approach the Tribunal within 90 days from the date of the communication and seek the Tribunal s assistance in forwarding for opinion, a question of law, arising out of the Appellate order passed by it, but that will not mandate invocation of this Court s jurisdiction or powers within 90 days from the refusal by the Tribunal. The argument really is that within 90 days of refusal by the Tribunal, the Applicant or the person can either withdraw his Application or apply to the High Court against that refusal. That can very well be done after 90 days. If that is done after 90 days this Court is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act is expressly excluded. Section 60 of the Act of 1959 confers power for extension of period of limitation only on an appellate authority while admitting an appeal under Section 55. Considering the language of section 60 and the object behind enacting it, an inference can be drawn that Section 60 was enacted to exclude the application of Section 5 of the Limitation Act. By necessary implication, therefore, it will also impliedly exclude the application of section 5 of the Limitation Act to an application for reference under the Act submitted either to the Tribunal or the court under the proviso to section 61. Considering the specific provisions of the special law, the ratio of the Supreme Court judgment in the case of Union of India v. Popular Construction Co. (2001) 8 SCC 470 and the decision in the case of Commissioner of Sales Tax, U.P. v. Parson Tools and Plants (1975) 35 STC 413 (SC) is squarely applicable. 17 The Division Bench held that in computing the period laid down in sections 55, 57 and 61, the provisions of section 4 and 12 of the Limitation Act, 1963 shall, so far as may be applied. Therefore, though section 5 of the Limitation Act, 1963 has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 25 and 26. Thereafter, the judgments brought to its notice by parties have been referred in paras 27, 28 and 29. Some of the judgments that the Hon ble Supreme Court referred are also cited in the Division Bench order in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers. 28 Therefore, it may be as Mr.Sonpal contented there should be an express exclusion of section 5 of the Limitation Act, 1963, so as to disable the Court from condoning the delay in filing any Application. He urges that there is no such express exclusion. The Division Bench erroneously read the word only in section 59 of the Bombay Sales Tax Act, 1959. However, as the Hon ble Supreme Court has clarified it is not just the aspect of express exclusion but the nature of the proceedings which are relevant. The Hon ble Supreme Court has therefore, examined the matter and with the reference to all the previous judgments. In the event, an Application lies to a Court then, the nature of the enquiry should be as held by the Hon ble Supreme Court. In the earlier paragraphs which we have reproduced above, the Division Bench of this Court has referred to other decisions and rendered by the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. It is a remedy to correct an erroneous, incorrect and illegal order and at the first available opportunity and within the statutory frame work, that the Appellate Authority has been conferred further power to condone the delay in filing of an Appeal. It is in such circumstances, that section 60 uses the words and of great significance, namely, the Appellate Authority may admit the Appeal under section 55 after the period of limitation laid down in the said section if the Appellant satisfies the Appellate Authority that he has sufficient cause for not preferring the Appeal within such period. In comparison in section 59, the legislature clarifies that for computation of the period laid down under sections 55, 57 and 61, the provisions of sections 4 and 12 of the Limitation Act, 1963, shall so far as may be apply. Reading these two provisions together reveals the legislative intent. For the purposes of computation of the period of limitation laid down by sections 55, 57 and 61 which are powers of Appeal, Revision and of referring of a statement of case to the High Court, the provisions of sections 4 and 12 of the Limitation Act, 1963 can be applied but that also so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this court, while examining whether the Limitation Act would be applicable to the provisions of Representation of People Act, observed as under: 17. ....but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are 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 an 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 Act. In our view, 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 subjectmatter and scheme of the special law exclude their operation. 30. According to Hukumdev Narain Yadav (AIR 1974 SC 480) (supra), even if there exists no express exclusion in the special law, the court reserves the right to examine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to which they are not excluded by the special or local law. In our case, beyond further period of 30 days and total period of 90 days, there is no further application of section 5 of the Limitation Act, 1963. The extent to which section 5 can be applied having been enumerated and set out in section 128(1) of the Customs Act, 1963, which is a special law, then, for the further delay in filing or presenting the Appeal, applicability of section 5 of the Limitation Act, 1963 is expressly ruled out. The language of section 128(1), which is a special law, therefore cannot be ignored or brushed aside. 28) Mr. Dhond sought to take assistance of subsection (2) of section 14 of the Limitation Act, 1963. He contends that the time spent in prosecuting this Writ Petition be excluded as the Petitioner was bonafide pursuing that civil proceeding in this Court. Since this Court found that it had no jurisdiction to entertain the Petition because of an alternate efficacious remedy of an Appeal under section 128 of the Customs Act, 1962 that the Petitioner became aware of the lack of jurisdiction of this Court. The entire period spent in prosecuting and pursuing this Writ Petition if excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court was approached by the Appellant to challenge an order passed by this Court on the application for condonation of delay in filing the Appeal under section 35 of the Foreign Exchange Management Act, 1999. This Court dismissed the application along with the Appeal. 32) After noticing the background facts and the rival contentions, particularly para 15, where the Enforcement Directorate s Counsel supported the impugned order, the Hon ble Supreme Court then referred to relevant provisions and the case law. It then referred to another Judgment delivered by it in the case of State of Goa vs. Western Builders reported in (2006) 6 SCC 239 and ultimately in paras 30, 31 and 32, the Hon ble Supreme Court held as under: 30. The aforesaid three judgments do support the argument of Shri. Ranjit Kumar that even though Section 5 of the Limitation Act cannot be invoked for condonation of delay in filing an appeal under the Act because that would tantamount to amendment of the legislative mandate by which the special period of limitation has been prescribed, Section 14 can be invoked in an appropriate case for exclusion of the time during which the aggrieved person ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vide the said order dated 26-7-2010, while relying on the judgment of the Hon'ble Supeme Court, it was held by the Hon'ble Delhi High Court that even an order passed by the Appellate Tribunal in an application seeking dispensation of predeposit of the penalty would be appealable under section 35 of the FEMA and that remedy under Article 226 is not available against such an order. Further, the Hon'ble Delhi High Court also held that the present petition cannot be entertained by this Court. It is, however, open to the appellants to avail of the appropriate remedy in terms of para 45 of the above judgment of the Supreme Court. 3.3 Hence, pursuant to the said order passed by the Hon'ble Delhi High Court the appellant abovenamed prefers an appeal before this Hon'ble Bombay High Court. 3.4 Under the said circumstances the appellant most humbly prays that this Hon'ble Court may be pleased to condone the delay. 3.5 It is submitted that the delay in filing of the present appeal has not prejudiced the respondent in any manner, whatsoever, and, therefore, this Hon'ble Court be pleased to condone the said delay. 3.6 It is further submitted that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act. 33) We are unable to agree with Mr. Dhond that this Judgment would enable us to conclude that section 14 of the Limitation Act, 1963 can be invoked by the Petitioner to get over the outer limit or restriction in sub section (1) of section 128 of the Customs Act, 1962. In fact, all the Judgments that have been referred by the Hon ble Supreme Court take the view that there was no power to condone the delay after expiry of the prescribed period. In that regard, the Hon ble Supreme Court has, in para 21, referred to a Judgment delivered by it in the case of Singh Enterprises vs. Commissioner of Central Excise reported in (2008) 3 SCC 70. In para 22, the Hon ble Supreme Court referred to a three Judge Bench decision in the case of Consolidated Engineering Enterprises vs. Irrigation Department reported in (2008) 7 SCC 169. In para 23 it specifically referred to two Judgments delivered by it, first in the case of Commissioner of Central Excise and Customs vs. Hongo India (P.) Ltd. reported in (2009) 5 SCC 791 and second in the case of Union of India vs. Popular Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 14 of the Limitation Act would be attracted in view of the judgment of this Court in Rajkumar Shivhare v. Union of India 2011 (273) E.L.T. 75 (Bom.). The period for filing a revision under Section 35EE(2) of the Central Excise Act, 1944 is three months. However, the Central Government, if the applicant was prevented by sufficient cause from presenting the application within three months may allow the application to be presented within a further period of three months. There is no dispute about the position that if the period which was spent in prosecuting the proceedings before the Tribunal, is excluded, the revision which was filed before revisional authority would be within the stipulated period under subsection (2) of Section 35EE. 35) A bare perusal thereof would indicate that the Revenue approached the CESTAT within the period prescribed by law for filing an Appeal. That Appeal was pending before the Appellate Authority when it passed the final order holding that it was not maintainable. When the Revenue approached the Revisional Authority within three months of the date of the Tribunal s order and sought benefit not only under section 14 of the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing terms: In view of this Court s jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will consider the question of limitation sympathetically having regard to the provision of Section 14 of the Limitation act and also having regard to the fact that the appellant was bona fide pursuing his case under Article 226 of the Constitution before the Delhi High Court and then its appeal before this Court. 37) In the light of the wider power conferred on the Hon ble Supreme Court by Articles 136 and 142 of the Constitution of India, the direction issued by it had to be abided by all Courts and Tribunals so also Authorities in India. Such being the scope of the direction and traceable to Articles 136 and 142 of the Constitution of India that the Division Bench in para 7 excluded the period spent by the Appellant in the above proceedings. The Division Bench in paras 7 and 8 expressly held as under: 7. Section 29(2) of the Limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 and Conciliation Act, 1996 specifies that an application for setting aside an arbitral award may not be made after three months have elapsed from the date on which the party making that application had received that arbitral award. Under the proviso, if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days but not thereafter. The issue which arose before the Supreme Court was whether the Limitation Act, 1963 was inapplicable to a proceeding in Court under the Arbitration and Conciliation Act and, even if the Limitation Act, 1963 is applicable, whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect or procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded In his concurring judgment, Mr. Justice R. V. Raveendran held that the proviso to Section 34(3) is a provision relating to the extension of the period of limitation; and since it differs from Section 5 of the Limitation Act in regard to the period of extension, the proviso to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with that question, the Hon ble Supreme Court referred to the facts till para 7 and in para 8 noted the contentions of Union of India. Para 8 of the decision reads as under: 8. A contention that the said suits were barred by limitation was raised by the appellants herein stating that the cause of action for filing the same arose immediately after the judgment was passed by 'The Tribunal' on 1841966 and, thus, in terms of Article 59 of the Limitation Act, 1963, they were required to be filed within a period of three years from the said date, as despite the fact that the Special Leave Petition was preferred thereagainst, no stay had been granted by this Court and, thus, the period, during which the matter was pending before this Court, would not be excluded in computing the period of limitation. Having regard to the plea raised by the plaintiffrespondent in the aforementioned suits as regards the applicability of sections 14 and 15 of the Limitation Act, 1963, the trial Court held that the suits had been filed within the stipulated period. The High Court in appeal also affirmed the said view. 41) Thereafter it noted the reliance placed by Union of India on a Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot entertained on the ground stated hereinbefore. The respondents were, thus, also entitled to get the period during which the writ petition pending, excluded for computing the period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation. 17. The Trial Judge as also the High Court have recorded a concurrent opinion that the respondents were entitled to the benefits of sections 14 and 15 of the Limitation Act, 1963. We have no reason to take a different view. 18. It is beyond any cavil that in the event, the respondent was held to have been prosecuting its remedy bonafide before an appropriate forum, it would be entitled to get the period in question excluded from computation of the period of limitation. 43) Thereafter, the relevant observations of the Hon ble Supreme Court are to be found in paras 40, 41 and 42, which reads as under: 40. In Mohinder Singh Jagdev (supra) also this Court held : 7. The crucial question is whether the suit is barred by limitation? Section 3 of the Limitation Act, 1963 (for short, the Act ) postulates that the limitation can be pleaded. If any proceedings have been laid after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase where a Appeal is filed that being a continuation of the lis, its pendency can be relied upon to claim the benefit. A Writ Petition's pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neither it was entertained nor any interim relief was granted, leave alone admitting it. If the Petitioner decides not to approach the appropriate, correct or right Forum, but tries to bypass it by filing a Writ Petition and allows the time to run, then, it cannot request this Court in its discretionary and equitable jurisdiction to set right a wrong, for which it is itself responsible. In other words, the Petitioner is trying to take advantage of its own wrong committed earlier in approaching this Court, though knowing fully well that it had refused to exercise jurisdiction, because the alternate efficacious remedy of Appeal to the Commissioner of Customs was provided by law. The Petitioner did not take steps to file such an Appeal even during the pendency of the Writ Petition and allowed the time t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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