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TMI Blog2019 (10) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... further period of sixty days. In M/S SIMPLEX INFRASTRUCTURE LTD VERSUS UNION OF INDIA [ 2018 (12) TMI 388 - SUPREME COURT] , the Supreme Court has held that delay beyond the three months plus thirty days under Section 34 of the Arbitration Act cannot be condoned - Similarly in the matter of BENGAL CHEMISTS AND DRUGGISTS ASSOCIATION VERSUS KALYAN CHOWDHURY [ 2018 (2) TMI 487 - SUPREME COURT] , the Hon;ble Supreme Court held that limitation period of 45 days in Section 421 (3) plus additional 45 days grace period are peremptory and mandatory nature and no further time can be granted beyond this total period. Thus, this Court is of the view that the High Court cannot breach statutory mandate and cannot make the provisions of Limitation Act applicable. Consequently, the appeals filed by the appellant are held not maintainable as the same have been filed beyond the prescribed period of limitation as provided under Section 42 of the PMLA - applications for condonation of delay in filing the appeals are rejected - appeal dismissed. - IA No. 01 of 2018 In Appeal (Crl.) No. 01 of 2018, WITH IA No. 01 of 2019 In Appeal (Crl.) No. 01 of 2019, Appeal (Crl.) No. 02 of 2019, Appeal (Crl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for which they were not authorized to award. The courses were conducted without adhering to any basic rules and regulations. The University also did not bother to maintain any standard or quality of education/examination before awarding the degree and diploma. The University authorities with the assistance of various national/regional coordinators engaged by them duped thousands of innocent students by fraudulently selling unauthorized degrees, diplomas and certificate through distance education courses. The University was also involved in offering another mode of education known as Collaborative Industry Based Education. The object of the said education was to lure hapless students into grandiose programmes without any approval from any statutory authorities. It is stated that Eastern Institute for Integrated Learning in Management University, Sikkim was created only with the object of duping thousands of innocent students by charging them exorbitant fees for various lucrative courses and offering them degrees which were not recognized by any statutory authority. Some regular courses stated to have been offered by the University are only with a motive to hoodwink the unsuspectin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Member (Legal) may be having the qualifications to become Judicial Member, but facts remains that his appointment was not made for as Judicial Member. The Tribunal further observed that none of the hearing officer was a Judicial Member, within the mandate of judgment of the High Court and the order was without jurisdiction. The Tribunal set aside the same and remanded back the appeals directing the Adjudicating Authority to comply with the directions of the High Court. 8. Against the order of the Tribunal dated 15.06.2017 these appeals have been filed. 9. Before considering the case of the appellant on merit, this Court is required to consider the applications filed by the appellant for condonation of delay in filing the appeals, as all the appeals have been filed with considerable long delay. In Appeal (Crl.) No. 01 of 2018 there is a delay of 456 days. Similarly in other appeals; Appeal (Crl.) No. 01 of 2019, Appeal (Crl.) No. 02 of 2019, Appeal (Crl.) No. 03 of 2019, Appeal (Crl.) No. 04 of 2019 and Appeal (Crl.) No. 05 of 2019 there is delay of 571 days in filing the appeals. 10. The grounds taken by the appellant in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, seeking instruction in the matter. (h) On 13.11.2017, Enforcement Directorate, Kolkata Zonal Office received a letter dated 09.11.2017, from its H.O with direction that the Judgment / Order, dated 22.09.2017, passed by the Hon;ble High Court of Sikkim should be challenged before the Division Bench. (i) On 17.11.2017 a letter sent to Mr. Karma Thinlay, Central Government Counsel, Sikkim High Court from Enforcement Directorate, Kolkata with request to move a Writ Appeal against the order dated 22.09.2015. (j) Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim vide his letter dated 09.01.2018, intimated that no appeal shall lie in Sikkim High Court, against any order passed in exercise of criminal jurisdiction. He also instructed to take up the matter with the Ministry of Law, Branch Secretariat, Kolkata. (k) Letter dated 18.01.2018 sent to H.O of Enforcement Directorate, Kolkata intimating that the matter is being taken up with Ministry of Law, Branch Secretariat, Kolkata, as instructed by Mr. Karma Thinlay. (l) U.O. note dated 21.01.2018, sent to Ministry of law, Branch Secretari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (y) That learned Counsel Jigme Phunchok Bhutia, SPP, sent to the draft copy of the appeal for final vetting and sanction to the Regional Office, Kolkata on 23.11.2018. 11. The respondents in their objection to the condonation of delay applications stated that the applications are not maintainable, in view of the express provision of Section 42 of the PMLA, as provisions of the Limitation Act, 1963 are not applicable especially in view of the Section 29 (2) of the Limitation Act, 1963. It is submitted by the respondents that the PMLA is a self-contained code and is comprehensive Special Legislation containing detailed provisions of investigation, search and seizure, arrest, provisional attachment, filing of complaint and filing of appeals before the Appellate Tribunal and the High Court, whereas the Limitation Act, 1963 is a general law. Thus, Section 5 of the Limitation Act, 1963 has no application in view of the specific proviso of Section 42 of the PMLA. It is also stated that as per Section 42 of the PMLA an appeal can be filed within sixty days from the communication of the decision or order. Proviso to Section 42 of the PMLA further pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (11) Thus it becomes plain that the expression Sufficient Cause; within the meaning of Section 5 of the Act or Order 22, Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute sufficient cause; or not will be dependent upon facts of each case. There cannot be a strait jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal and exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that laches and delay defeats equity and justice. However, a meritorious matter should not be thrown out on the ground of technical considerations as well as delay when cause of delay has been shown with reasons by the party concerned. It is also well settled that in the matter of condonation of delay the court should adopt liberal approach and the reasons for adopting such approach has been highlighted in the above foregoing paras keeping in view the decision of Hon;ble Apex Court rendered in Collector, Land Acquisition, Anantnag V. Katiji : AIR 1987 SC 1353, wherein the Supreme Court laid down about the liberal approach to be adopted on principle as it is realised that: (1) Ordinarily a litigant does not stand to benefit by lodging and appeal late. (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) Every day;s delay must be explained; does not mean that a pedantic approach should be made. Why not ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crystal clear that the High Court, being an Appellate Court in terms of Section 42 of the PMLA, has no statutory power to allow the appeal to be presented beyond the further period not exceeding 60 days. The language used in Section 42 of the PMLA and its proviso makes the position clear that the legislature intended the High Court, while acting as an appellate court, to entertain the appeal by condoning delay only upto 60 days after the expiry of 60 days which is the normal period for preferring an appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act, 1963 from the provisions of the PMLA as crucial word/ capping 'further period not exceeding sixty days' has been used in the proviso of Section 42 of the PMLA by the legislation. They submitted that in view of the specific proviso of Section 42 of the PMLA, the High Court has no statutory discretionary power to condone the delay beyond 60 days as stipulated in the said proviso. Learned counsel for the respondents further submitted that many other Special Acts like the Arbitration Conciliation Act, 1996, Foreign Exchange Management Act, 1999, Securities and Exchange Board of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) 2 SCC 322 : D. Gopinathan Pillai Vs. State of Kerala Anr., and (xv) (2008) 7 SCC 619 : Tata Motors Limited Vs. Pharmaceutical Products of India Ltd. Anr. 17. I have considered the submissions of learned counsel for the parties. 18. Against the order of the Appellate Tribunal an appeal may be filed in the High Court under Section 42 of the PMLA. Section 42 of the Act is as follows: 42. Appeal to High Court.- 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 or fact arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation.-For the purposes of this section, High Court means- (i) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35 of the Act beyond 120 days does not require much debate and has to be answered against the appellants in view of the law laid down in Union of India v. Popular Construction Co., (2001) 8 SCC 470 , Singh Enterprises v. CCE, (2008) 3 SCC 70, CCE Customs v. Punjab Fibres Ltd., (2008) 3 SCC 73, Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169, CCE Customs v. Hongo India (P) Ltd. , (2009) 5 SCC 791 and Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23. 22. In similar cases which came before the Hon;ble Supreme Court in which the Hon;ble Supreme Court has clearly held that delay cannot be condoned where legislation has made its intention clear that not exceeding; and but not thereafter; etc. 23. In Simplex Infrastructure Ltd. Vs. Union of India : (2019) 2 SCC 455, the Supreme Court has held that delay beyond the three months plus thirty days under Section 34 of the Arbitration Act cannot be condoned. The Hon;ble Supreme Court held as under: 7. The issue which has been raised before this Court is whether the learned Single Judge was justified in condoning a delay of 514 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply as far as may be . In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply. 5. Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of the learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a transfer petition was filed under Section 25 CPC, 1908 in this Court. A preliminary objection was taken stating that in view of Sections 21 and 21-A of the Hindu Marriage Act, 1955, Section 25 would not be applicable. This was turned down by this Court stating that Section 21 would not apply to substantive provisions of the Code as apart from procedural provisions. Equally, Section 21-A of the Hindu Marriage Act, 1955 only dealt with transfers in certain cases . This being so, the wide and plenary power conferred on this Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one civil court in one State to another civil court in any other State was held not to be entrenched upon by Sections 21 and 21-A of the Hindu Marriage Act. We fail to see how this judgment, in any manner, furthers the proposition sought to be canvassed on behalf of the appellant, which is that Section 5 of the Limitation Act would continue to apply even after a second period of 45 days is peremptorily laid down. This judgment, therefore, does not carry the matter any further. 8. Reliance placed on Partap Singh v. Directorate of Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t another period of 45 days, being a grace period given by the legislature which cannot be exceeded, alone would apply, provided sufficient cause is made out within the aforesaid grace period. As has been held by us above, it is the second period, which is a special inbuilt kind of Section 5 of the Limitation Act in the special statute, which lays down that beyond the second period of 45 days, there can be no further condonation of delay. On this ground therefore, the aforesaid judgment also stands distinguished. 12. One further thing remains - and that is that the learned counsel for the appellant pointed out the difference between the expression used in the Arbitration Act as construed by Popular Construction [Union of India v. Popular Construction Co., (2001) 8 SCC 470] and its absence in the proviso in Section 421(3). For the reasons given above, we are of the view that this would also make no difference in view of the language of the proviso to Section 421(3) which contains mandatory or peremptory negative language and speaks of a second period not exceeding 45 days, which would have the same effect as the expression but not thereafter used in Section 34(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 27. In view of the above discussion, this Court is of the view that the High Court cannot breach statutory mandate and cannot make the provisions of Limitation Act applicable. Consequently, the appeals filed by the appellant are held not maintainable as the same have been filed beyond the prescribed period of limitation as prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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