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TMI Blog2017 (6) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed. - C.M.A. SR.No.67516 of 2016 and C.M.P.No.131 of 2017 - - - Dated:- 24-4-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For the Appellant : Mr.Rajnish Pathiyil For the Respondents : Mr.K.Jayachandran JUDGMENT ( Judgment of the Court was delivered by Rajiv Shakdher, J. ) 1. The Miscellaneous Petition is preferred seeking condonation of delay. 1.1. This petition has been filed on behalf of the Union of India, i.e., Revenue. 1.2. The petition accompanies an appeal preferred under Section 35 of the Foreign Exchange Management Act, 1999 ( in short FEMA). 1.3. The appeal is, presently, at the stage of registration, as the captioned petition is pending consideration of this Court. 2. Notice in this petition was issued on 12.01.2017. Pursuant to which, respondent Nos.1, 5 and 6 have filed their reply. The said respondents have taken an objection to the condonation of delay. 2.1. It is the stand of the respondents that, being a statutory appeal, which provides for a specific period of limitation, this Court would have no jurisdiction to condone the delay. 2.2. It is the submission of the respondents that FEMA is a special statute and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med that there is no procedure in place for applying for a certified copy and that the same is dispatched by the registry of the Tribunal, as and when it is ready. 7.3. To be noted, learned counsel for the Revenue is also not able to state correctly as to what is the correct date of dispatch by the Tribunal. 7.4. We may only note that the first page of the impugned judgment of the Tribunal carries a stamp, which reads as follows: FTS No.1057/DE:3.2.2016 . 7.5. There is also an endorsement on the very same page, at the foot of the page, on the left side, which reads as follows: 247/DLA:04.02.2015 7.6. The date obviously seems to be a typographical error, as the impugned judgment was rendered on 22.01.2016. 8. Based on the said dates, there are two versions as to when the impugned judgment was received by the Revenue. 8.1. The Revenue says that the impugned judgment was received in their Delhi Office on 04.02.2016, whereas, the contesting respondents state that the impugned judgment was received by the Revenue on 03.02.2016. 8.2. Furthermore, it is the stand of the Revenue that the certified copy of the impugned judgment was received in Chennai, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (b)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. 10. A bare perusal of Section 35 of FEMA would show that any person aggrieved by any decision or order of the Tribunal is entitled to file an appeal to the jurisdictional High Court within 60 days from the date of communication of the decision or the order of the Tribunal on any question of law arising from such an order. The proviso gives a leeway to the jurisdictional High Court to entertain an appeal beyond the period of 60 days provided in the main provision, in case, sufficient cause is furnished, as to why an appeal could not be preferred within the time stipulated therein. 10.1. The only caveat, which is entered in the proviso is that the High Court can allow condonation of appeal for a further period not exceeding 60 days . 10.2. Therefore, as to whether or not, this Court would have power to condone the delay beyond the period provided in the proviso, would depend on the language used. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. The Court further observed that the power of the Court to extend time to file written statement beyond the time frame prescribed in the said provision was not completely taken away. 13.5. A close reading of the judgment would show that, in coming to this conclusion, the Court took into account the fact that the time limit, provided in Order 8 Rule 1 of CPC, obtained qua the defendant and not vis-a-vis the Court. In addition thereto, the Court also took into account the other provisions obtaining in the CPC, i.e.,Order 8 Rule 9, which empower the Court, to permit a written statement being filed, if, the Court requires such a written statement to be placed on record. Furthermore, the Supreme Court also noticed the provisions of Order 8 Rule 10, which, interalia, provide that a Court need not necessarily pronounce a judgment against a defendant, who fails to file a written statement, as required under Order 8 Rule 1 or Rule 9 of the CPC. 13.6. Clearly, neither the scheme of CPC nor the ratio of the judgment of the Supreme Court in Kailash V. Nanhku and Ors., can be applied, in our opinion, to understand the scope and ambit of Section 35 of FEMA. 13.7. Therefore, to ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.3. The Division Bench, in our view, quite correctly, applied the principles enunciated by the Supreme Court in the matter of: Union of India V. Popular Construction Co., (2001) 8 SCC 470 and came to the conclusion that the delay could not be condoned beyond the period provided in the proviso to Section 35 of CE Act. We respectfully agree with the view taken in M.R.Tobacco case. 14.4. Notably, in the Popular Construction case, the Supreme Court was dealing with Section 34 of the Arbitration and Conciliation Act, 1996. 14.5. Once again, for the sake of convenience, the relevant part of Section 34 of the Arbitration and Conciliation Act, 1996, is extracted hereafter: 34 Application for setting aside arbitral award. (1)Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2)........ (3)An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the language, express exclusion may follow from the scheme and object of the special or local law: [E]ven 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 subject-matter and scheme of the special law exclude their operation. [(1974) 2 SCC 133] (SCC p. 146, para 17) 14.Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need to minimise the supervisory role of courts in the arbitral process [ Para 4(v) of the Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996] . This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: 5.Extent of judicial intervention. Notwithstanding anything cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Act applied to objections to an award under the 1996 Act. It is true that in the body of that judgment, there is a reference to the 1996 Act. But that is an apparent error as the reasoning clearly indicates that the provisions of Section 30 of the Arbitration Act, 1940 and not Section 34 of the 1996 Act were under consideration. In order to clarify the position, we have scrutinised the original record of Hanuman Prasad Bros.[2000 AIR SCW 3934(2) : (2001) 8 SCC at p. 476 (See below)] decided on 6-3-2000. We have found that that was indeed a case which dealt with an award passed and challenged under the Arbitration Act, 1940. No question was raised with regard to the applicability of the Limitation Act to the 1940 Act. The only issue was whether the High Court should have refused to condone the delay of 2 months and 22 days in filing the objection to the award. This Court found that sufficient cause had been shown to condone the delay and accordingly set aside the decision of the High Court. This decision is as such irrelevant. (Emphasis is ours) 15. In so far as Section 35 of the FEMA is concerned, the Division Bench of the Calcutta High Court, in the case of Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with various enactments that the nature of language mentioned in the statute is an indicator to hold that the special statute has expressly excluded the provisions of Section 5 of Limitation Act. In our view, the language mentioned in Section 29(2) does not require that the special statute should provide expressly and with certain language that such and such section is expressly excluded. The substance of the language mentioned in the statute concerned is good enough to conclude that effect thereof is nothing but exclusionary. In this connection, Mr. Mukherjee has usefully drawn our attention to the decision of Supreme Court in the case of Union of India v. Popular Construction Co., reported in (2001) 8 SCC 470. In paragraph 10 of the report, while accepting the earlier decision of Supreme Court in the case of Hukumdev Narain Yadav v.Lalit Narain Mishra, (1974) 2 SCC 133, the Apex Court in the context of section 34 of the Arbitration and Conciliation Act, 1996 has viewed as follows: This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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