Full Judgment Text
Neutral Citation Number:2023/DHC/000847
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: February 07, 2023
+ O.M.P. (COMM) 316/2022, IAs. 11689/2022 & 11690/2022
MY PREFERRED TRANSFORMATION AND HOSPITALITY
PVT LTD AND ANR
..... Petitioners
Through: Mr. Rajiv Nayar, Sr. Adv. with
Mr. Harsh Kaushik, Mr. Sachin
Akhoury, Ms. Adrija Mishra &
Mr. Saurabh Seth, Advs.
versus
FARIDABAD IMPLEMENTS PVT LTD
..... Respondent
Through: Mr. Simran Mehta and
Mr. K.B. Acharya, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
J U D G M E N T
V. KAMESWAR RAO, J
I.A. 11689/2022
1. By this order, I shall decide the aforesaid application which
has been filed by the petitioner/applicant seeking condonation of delay
in filing a petition under Section 34 of the Arbitration and Conciliation
Act, 1996 (‘Act of 1996’ for short) for quashing and setting aside the
arbitral award dated February 04, 2022.
2. The Arbitrator had sent a soft copy of the impugned award
dated February 04, 2022 to the applicant / petitioner by email and the
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hard copy thereof on February 14, 2022.
3. According to the applicant, the petition under Section 34 of the
Act of 1996, is within limitation as the Supreme Court in Suo Moto
Writ Petition No. 3/2020, directed that the period from March 15, 2020
till February 28, 2022, shall stand excluded for the purpose of
limitation in all proceedings and that the period of limitation would
start from March 1, 2022.
4. It is the case of the applicant that the statutory period of three
months for challenging the impugned award had started from March 1,
2022 and expired on May 31, 2022, and the additional condonable
period of 30 days for challenging the impugned award had expired on
June 30, 2022.
5. It is also the case of the applicant that it had commenced
internal deliberations for challenging the award and initiated the
process for filing the petition under Section 34 of the Act, immediately
after receiving the impugned award.
6. Mr. Rajiv Nayar, the learned Senior Counsel for the applicant,
stated that the employees and the legal team in the petitioner /
applicant company, who are associated with the arbitration proceeding
exited the company and due to this sudden departure of the employees,
the process of filing the petition got severely hindered for three weeks,
i.e., till end of March, 2022. He also stated that the newly recruited
employees and legal team fell ill due to spread of COVID-19 and other
infections due to seasonal changes, which caused hindrance in the
process of filing, for another four weeks, i.e., till end of April, 2022.
7. He stated that, when the applicant approached its counsel and
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instructed them to initiate the filing process under Section 34 of the
Act, the counsels informed the petitioner / applicant that they were no
longer in a position to handle the disputes and declined to file the
petition. Therefore, it was extremely difficult for the petitioner /
applicant to file Section 34(3) of the Act of 1996 petition before May
31, 2022, the ‗prescribed period‘ . Thereafter, the petitioner / applicant
after many attempts engaged a new counsel to defend its interest in
setting aside the impugned award.
8. He stated that the new counsel could not file the petition as this
Court was closed for summer vacations from June 3, 2022 till July 04,
2022, which prevented the petitioner / applicant from filing the petition
for no fault of its own. He also stated that the number of days falling
under summer vacations should be excluded in computing the
extended and condonable period of limitation, and a fresh period of
limitation would then commence which would actually expire on July
31, 2022.
9. He stated that the petitioner / applicant filed the petition on the
re-opening day after the Court vacation and the applicant was well
within the condonable period of thirty days, and it is evident that, there
has been a delay of only three days beyond the statutory period, which
are bona fide and beyond the control of the petitioner. Therefore, the
delay of three days is minor and falls within discretionary condonable
power of this Court.
10. Mr. Nayar contended the respondents’ contention that Section
4 of the Limitation Act, 1963 (‘Act of 1963’, for short) does not apply
to the proviso to Section 34(3) of the Act of 1996, is untenable. He
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also submitted that the judgments relied by the respondent in Assam
Urban Water Supply and Sewerage Board v. Subash Projects and
Marketing Limited, (2012) 2 SCC 624, Sagufa Ahmed and Ors. v.
Upper Assam Plywood Products Private Limited and Ors., (2021) 2
SCC 317 and Union of India v. Enarch Consultants Pvt. Ltd.,
FAO(OS)(COMM) 127/2019 decided on May 28, 2019, deals and
discusses only about applicability of Section 4 of the Act of 1963, to
‗prescribed period‘ . He also stated that the said judgments did not
discuss about the applicability of Section 10 of the Act of 1897, in
situations, where Section 4 of the Act of 1963 is inapplicable, and that,
this argument was neither raised nor decided in the said judgments.
11. He stated that, in Sagufa Ahmed and Ors. (supra) , the
Supreme Court had granted the benefit of extension of limitation only
in respect of the ‗prescribed period‘ and in that case, the appeal was
filed after the ‗prescribed period‘ , and the Supreme Court had simply
reproduced Section 10 of the Act of 1897. The only issue considered
by the Supreme Court in the said case was with regard to the meaning
of ‗prescribed period‘ and the applicability of Section 4 of the Act of
1963 to the ‗prescribed period‘.
12. He submitted that Section 10(2) of the Act of 1897 clearly
provides that Section 10(1) of the Act applies to all Central Acts
including the Arbitration Act. Ex facie , Section 10(1) of the Act of
1897, would apply to the provision of Section 34(3) of the Act of 1996.
The only inapplicability of Section 10(1) is when the Act of 1963
applies.
13. He stated that the Section 4 of the Act of 1963, does not apply
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to the proviso to Section 34(3) of the Act of 1996, therefore, Section 4
of the Act of 1963, becomes inapplicable to the proviso of Section
34(3) and therefore, Section 10(1) of the Act of 1897 would apply. In
support of this contention, he relied upon the judgment of the Supreme
Court in the case of Sridevi Datla v. Union of India & Ors. (2021) 5
SCC 321, wherein, the Supreme Court with respect to Section 16 of
National Green Tribunal Act, 2010 (‘Act of 2010’, for short) held that
the Act of 1963 does not apply to Section 16 of Act of 2010, and
therefore, Section 10 of the Act of 1897 will apply. In the said case, the
last date of the extended period was a ‘Sunday’ and the appeal was
filed on the very next working day. He stated that the Court while
analysing Section 16 of the Act of 2010 and Section 10 of Act of 1897,
relied on the judgment of a four-Judge Bench of the Supreme Court in
H.H. Raja Harinder Singh v. S Karnail Singh, AIR 1957 SC 271, and
a three-Judge Bench of the Supreme Court in Manohar Joshi v. Nitin
Bhaurao Patil, (1996) 1 SCC 169, wherein, it held that Section 10 of
Act of 1897, will be applicable. He has also relied upon the judgment
of the Nagpur High Court in the case of Rambir Narhagir Gosai v.
Prabhakar Bhaskar Gadhaway, AIR (1966) Nag 300.
14. He stated that the respondent’s contention that the Act of 1963,
is inapplicable to the proviso to the Section 34(3) of the Act of 1996
and the applicant submission that Section 10(1) of the Act of 1897,
apply to Section 34(3) of the Act, does not lead to any conflict with the
ratio of the judgments in Assam Urban Water Supply and Sewerage
Board (supra) and Sagufa Ahmed and Ors. (supra) .
15. Mr. Nayar stated that Section 34(3) of the Act of 1996, must be
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given full effect and cannot be rendered otiose in situation where last
day of extended period falls on a holiday, as it cannot be accepted in
law, while litigants’ whose last day of the extended period falls on a
holiday, will be deprived from availing the said proviso, which will
make the provision ex facie arbitrary and discriminatory and therefore,
the applicability of Section 10 of the Act of 1897, to the proviso to
Section 34(3) of the Act ought to be upheld.
16. Furthermore, he stated that the judgments relied by the
petitioner holds the need to grant an opportunity to a litigant to file
when there is inapplicability of Section 4 of the Act of 1963. He also
stated that the applicant is seeking condonation of delay in filing which
falls within the preview of the extended period. He reiterated that the
applicant could have filed the petition on the last day of the extended
period, i.e., July 2, 2022, but this Court after summer vacation re-
opened only on July 4, 2022 and the petitioner / applicant filed the
petition under Section 34(3) of the Act of 1996, on the first opportunity
that was available, i.e., July 4, 2022, and it is covered by Section 10(1)
of the Act of 1897.
17. He stated that the rationale behind granting the litigants the
benefit of Section 10(1) of Act of 1897, is that a party cannot be
expected to do impossible, i.e., to file a petition / appeal on a day when
it is impossible to do so in law. He reiterated that, since Section 4 of
the Act of 1963, is not available for the litigant under Section 34(3) of
the Act of 1996, Section 10(1) of Act of 1897, becomes applicable.
18. He submitted that the extension to the ‗prescribed period‘
provided under Section 34(3) of the Act of 1996 is to provide an
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opportunity to approach the Court, when it has reasons for not filing
the same during the ‗prescribed period‘ . He also stated that, when the
period ends during Court vacation and the petitioner / applicant, is not
given the benefit under the Act of 1963 and the Act of 1897, then it
would deprive the petitioner / applicant the opportunity to approach
this Court to exercise the discretion, which it would have otherwise
exercised, if there has been no Court vacation. Therefore, the Court
vacations should not deprive a litigant from utilising an opportunity to
approach the Court.
19. He seeks prayer as made in the application.
20. Mr. Simran Mehta, the learned counsel for the respondent
stated that the ‗prescribed period‘ to challenge the arbitral award under
Section 34 of the Act is three months, and it is well-settled law by the
Supreme Court in the case of Assam Urban Water Supply and
Sewerage Board (supra), that the period of thirty days beyond three
months, which the Court may condone on sufficient cause being shown
under the proviso appended to sub-section (3) of Section 34 of the Act,
1996 is not the ―period of limitation‖ and as such Section 4 of the
1963 Act, is not at all attracted to the facts of the present case.
21. He has relied upon the judgment of the Supreme Court in the
case of Sagufa Ahmed and Ors. (supra), wherein, the Supreme Court
stated that the expression ―prescribed period‖ appearing in Section 4
cannot be construed to mean anything other than ‗period of limitation‘ .
22. He stated that the above said principle has to be applied to the
facts of the present case and the ―prescribed period‖ for filing having
expired on May 31, 2022, when this Court was not closed for
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vacations, the applicant was required to file before June 30, 2022. The
filing of petition on July 04, 2022 shall make the petition not
maintainable. He also stated that the applicant is not entitled to the
benefit of Section 4 of the Act of 1963, as the applicability of the
provision is premised on the ground, that the filing is made in the
―prescribed period‖.
23. He stated, the reliance on Section 10 of the Act of 1897, is
misplaced and a plain reading of the provision will show that the
applicability of Section 10 of the Act of 1897 is contingent upon the
expiry of the ‘ prescribed period‘. He stated that, in the present case, it
has been admitted that the ―prescribed period‖ expired on May 31,
2022, even Section 10 of the Act of 1897, will not come to the aid of
the petitioner’s case, which is liable to threshold rejection.
24. Mr. Mehta has stated that the reliance placed by the applicant
on an administrative notification No. 48/Estt./EI/DHC dated May 20,
2022, is misplaced and is merely a manifestation of Section 4 of the
Act of 1963 and Section 10 of the Act of 1897, as both of the Sections
are inapplicable once the ―prescribed period‖ of limitation of three
months expires.
25. He stated that the Clause 5 of the said notification stops
―limitation‖ during the vacation period, but this will not aid the
applicant, as the Supreme Court in Sagufa Ahmed and Ors. (supra)
has drawn a clear distinction between ‘period of limitation’ and period
during which ‘delay can be condoned in exercise of discretion
conferred by the statute’.
26. He stated that the judgments relied upon by the applicant did
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not examine the meaning of expression ‗prescribed period‘, as the said
issue was not raised before the Supreme Court. He also stated that the
judgment of the Supreme Court in Sridevi Datla (supra) is at variance
with the view taken by the Supreme Court in the cases of Assam
Urban Water Supply and Sewerage Board (supra) and Sagufa
Ahmed and Ors. (supra) . Further, he also stated that the judgment of
the Supreme Court in the case of Sridevi Datla (supra) is not an
authority for the meaning to be attributed to the expression ―prescribed
period‖ , as that issue was neither raised nor considered by the
Supreme Court.
27. Furthermore Mr. Mehta stated that the judgment relied upon by
the petitioner in Simplex Concrete Piles (India) Ltd. v. UOI, ILR
2010 II Delhi 699, has no application to the facts of the present case
and Manohar Joshi v. Nitin Bhaurao Patil (1996) 1 SCC 169, does
not deal with the meaning of expression ―prescribed period‖ as in the
said, judgment, there was no extended period during which delay could
be condoned by the Court, which is quite different from the scheme of
Section 34 (3) of the Act of 1996. In the said case, the ―period of
limitation‖ or the ―prescribed period‖ was a Court holiday, the
petition was filed on the first day of the opening of the Court which
was permissible. But in the present case, the facts being different the
petitioner is not entitled to the benefit of Section 10 of the Act of 1897.
28. He seeks dismissal of the present application.
29. Having heard the learned counsel for the parties and perused
the record, the issue which arises for consideration is whether the
present petition, having been filed on July 4, 2022, i.e., on opening of
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Courts after vacation, is barred by limitation and as such not
maintainable.
30. Though I have delineated the facts in the above paragraphs, for
the purpose of clarity, the following dates are required to be
mentioned/highlighted:
1. The date of award is February 4, 2022 and copy of the same
was sent and received on February 14, 2022.
2. In view of the Judgment of the Supreme Court in Suo Moto
Writ Petition (Civil) No. 3/2020, the limitation for filing a
petition under Section 34 shall commence only on March 1,
2022.
3. The period of three months in filing the petition expired on
May 31, 2022.
4. The condonable period of additional 30 days had expired on
June 30, 2022.
5. The petition was filed on July 4, 2022 on the first date of
opening of the Court after summer vacation.
31. The submission of Mr. Simran Mehta, learned counsel
appearing for the respondent is that the additional 30 days for
challenging the impugned award, being not a prescribed period , i.e.,
three months and the additional 30 days having expired on June 30,
2022, the filing of the petition on July 4, 2022 shall be barred by time
and the same cannot be condoned. In support of the aforesaid
submission, Mr. Mehta has relied upon the judgment of the Supreme
Court in the case of Sagufa Ahmed and Ors. (supra). In the said
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Judgment, the Supreme Court has referred to the Judgment in the case
of Assam Urban Water Supply and Sewage Board (supra) .
32. On the other hand, Mr. Rajiv Nayar has relied upon the
Judgment of the Supreme Court in Sridevi Datla (supra) wherein, the
facts are, the fifth respondent proposed the construction of New Green
Field International Airport, for which environmental clearance was
required by law and extant statutory notifications. The fifth respondent
applied to the Ministry of Environment, Forests and Climate Change
(‘MoEF’ for short) to seek environmental clearance. The MoEF after
following the procedure approved the clearance by an order dated
August 14, 2017. In terms of Section 19 of the Act of 2010. The
approval was posted on website of the MoEF on August 14, 2017.
33. The appellant therein, along with her appeal, preferred an
application for condonation of delay in approaching the NGT, given
the stipulation of Section 19 which mandates filing of the appeal
within 30 days from the date of communication of the impugned order,
before NGT on November 13, 2017. It was her case that, since the
clearance and related documents were voluminous, the matter required
some technical expertise thereby requiring the papers to be forwarded
to experts and lawyers in Delhi and in view of the inter-se
communication delay had occurred and the NGT needs to condone the
delay in the interest of justice. The NGT rejected the application and
consequently, the appeal was filed before the Supreme Court.
34. It was argued on behalf of the appellant before the Supreme
Court that, in the circumstances, the appeal cannot be said to be time
barred. It was argued that the date of reckoning limitation is from
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August 14, 2017, when the MoEF uploaded the decision on its website.
The 90 days period within which the appeal was to be filed expired on
November 12, 2017, which was a Sunday. It was submitted that, under
Section 10 of the Act of 1897, if any period prescribed ends on a
Sunday or a day on which the Court or the Tribunal does not function,
the next day should be considered as the terminus quo in point of time.
35. The appeal was opposed by the Union of India stating that the
impugned order does not require any interference inasmuch the
publication of environmental clearance dated August 14, 2017 was
done on August 21, 2017 when the appellant came to know of the
same. It is that day which has given cause of action to the appellant to
approach the NGT. That apart it was argued that the period of
limitation prescribed is actually 30 days of filing of appeal and the
further period of 60 days is only by way of acceptance of application
for condonation of delay. Thus, no appeal is maintainable after expiry
of 90 days.
36. The Supreme Court, on the argument on behalf of the
appellant, held that the NGT should have considered the issue whether
the appeal was filed within the extended period prescribed under the
proviso to Section 16, i.e., within 60 days after the expiry of the initial
30 days period stipulated in the main provision. It was also argued on
behalf of the appellant that, since there is no intention to the contrary,
the appeal is to be considered as having been filed within the extended
period of 60 days, since the last day was a Sunday. The appellant relied
upon Section 10 of the Act of 1897 for that purpose. The Supreme
Court in paragraphs 21 and 22 on which heavy reliance has been
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placed by Mr. Nayar, was of the following view:
―21. Section 10 of the General Clauses Act, 1897 stipulates
that when the last date for doing something falls on a public
holiday, the act ―shall be considered as done..‖ if it ―is done
or taken on the next day afterwards on which the Court or
office is open‖. This provision applies to all Central Acts
enacted after the said Act was brought into force. The scope of
this provision was considered by this Court in H.H. Raja
Harinder Singh v. S. Karnail Singh13 by a four judge Bench,
which explained the object of Section 10 and held as under:
―5. … Where, therefore, a period is prescribed for the
performance of an act in a court or office, and that period
expires on a holiday, then according to the section the act
should be considered to have been done within that period, if it
is done on the next day on which the court or office is open.
For that section to apply, therefore, all that is requisite is that
there should be a period prescribed, and that period should
expire on a holiday.‖
22. Other decisions have followed the same reasoning. It is
also noticeable that there is no indication in the NGT Act that
Section 10 of the General Clauses Act cannot be applied. It is
therefore, held that the provision applies proprio vigore to all
appeals filed under the NGT Act.‖
37. In other words, it was his submission that, for the purpose of
extended period beyond the prescribed period, Section 10 of the Act of
1897, shall have applicability. In other words, when the last date for
doing something falls on a public holiday that can be considered as
done, if it is done or taken on the next day on which the Court or office
is open. The Supreme Court in Sridevi Datla(supra), has also referred
to its earlier Judgment in the case of H.H. Raja Harinder Singh
(supra) , wherein in paragraph 5, the following has been stated:
―5. This argument proceeds on an interpretation of Section 10
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of the General Clauses Act which, in our opinion, is erroneous.
Broadly stated, the object of the section is, to enable a person
to do what he could have done on a holiday, on the next
working day. Where, therefore, a period is prescribed for the
performance of an act in a court or office, and that period
expires on a holiday, then according to the section the Act
should be considered to have been done within that period, if it
is done on the next day on which the court or office is open.
For that section to apply, therefore, all that is requisite is that
there should be a period prescribed, and that period should
expire on a holiday. Now, it cannot be denied that the period of
fourteen days provided in Rule 119 (a) for presentation of an
election petition is a period prescribed, and that is its true
character, whether the words used are ―within fourteen days‖
or ―not later than fourteen days‖. That the distinction sought
to be made by the appellant between these two expressions is
without substance will be clear beyond all doubt, when regard
is had to Section 81 of the Act. Section 81(1) enacts that the
election petition may be presented ―within such time as may be
prescribed‖, and it is under this Section that Rule 119 has
been framed. It is obvious that the rulemaking authority could
not have intended to go further than what the section itself had
enacted, and if the language of the Rule is construed in
conjunction with and under the coverage of the section under
which it is framed, the words ―not later than fourteen days‖
must be held to mean the same thing as ―within a period of
fourteen days‖. Reference in this connection should be made to
the heading of Rule 119 which is, ―Time within which an
election petition shall be presented‖. We entertain no doubt
that the legislature has used both the expressions as meaning
the same thing, and there are accordingly no grounds for
holding that Section 10 is not applicable to petitions falling
within Rule 119.‖
38. In so far as the judgment in the case of Manohar Joshi
(supra), which was relied upon by Mr. Nayar is concerned, the facts as
noted from the Judgment are; Manohar Joshi was the candidate of the
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BJP-Shiv Sena Alliance at an election, while the original election
petitioner Bhaurao Patil was the candidate of the Congress (I) Party.
Manohar Joshi secured highest number of votes, i.e., 47,737 while
Bhaurao Patil secured 24,354 votes and accordingly, Manohar Joshi
was declared as elected on March 1, 1990. The last date of filing the
election petition according to the limitation prescribed under sub-
section (1) of Section 81 of the Representation of the People Act (‘RP
Act’, for short) was April 14, 1990, but the election petition was
actually presented in the Bombay High Court on April 16, 1990. It is
also admitted that April 14, 1990 was a Saturday on which date, the
High Court as well as its office was closed and April 15, 1990, was a
Sunday on which date also the High Court as well as its office was
closed. Therefore the election petition could not have been presented
on either of these two dates.
39. The question which arose before the Supreme Court related to
the compliance of Section 81 of the RP Act which renders the election
petition as not maintainable under Section 86 of the RP Act. The High
Court rejected the contention that the election petition was time-barred.
40. The Supreme Court after noting the provisions of Sections 81,
83 and 86 (1) has in paragraph 8 stated as under: -
―8. In substance, the point for decision is whether the election
petition filed on 16-4-1990 was presented within 45 days from
the date of election of the returned candidate as required by
sub-section (1) of Section 81, since the last day of limitation,
so reckoned, fell on 14-4-1990. Admittedly, the High Court and
its office was closed on 14-4-1990 as well as 15-4-1990 on
account of which the election petition could not have been
presented in the High Court on any of these two days.
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Incidentally, even 13-4-1990 was a holiday when the High
Court and its office was closed, but that is not of any
significance since the last day of limitation was 14-4-1990.
There is no controversy that the provisions of the Limitation
Act, 1963 are not applicable to the election petitions required
to be presented under the R.P. Act and, therefore, Section 4 of
the Limitation Act is of no avail. The only question is whether
Section 10 of the General Clauses Act, 1897 applies to an
election petition to permit filing of the election petition on the
date when the High Court opened after the holidays. If Section
10 of the General Clauses Act is applicable then the election
petition presented on 16-4-1990 was within the time prescribed
by sub-section (1) of Section 81 and there would be no non-
compliance of that provision to attract Section 86(1) of the
R.P. Act requiring dismissal of the election petition as time-
barred.‖
41. The Supreme Court has also in paragraph 9 noted Section 10
of the Act of 1897, as under:
―9. The submission of Shri Jethmalani is that the R.P. Act is a
self-contained code and, therefore, no provision outside the
Act can be imported for the purpose of computing the
limitation for presentation of an election petition. On this
basis, he submitted that Section 10 of the General Clauses Act
has no application. In reply, Shri Ashok Desai, learned counsel
for the respondents, submitted that the scheme of the R.P. Act
and the legislative history of the limitation prescribed by the
Act for presentation of an election petition clearly show that
Section 10 of the General Clauses Act applies for computing
limitation for presentation of an election petition. Shri Desai
also relied on the legal maxim — lex non cojit ad impossibilia
— which means ―the law does not compel a man to do that
which he cannot possibly perform‖. Shri Desai submitted that
the election petitioner was entitled as of right to present the
election petition on the last day of limitation which fell on 14-
4-1990, but that day and the next day being holidays when the
High Court and its office was closed, the election petition
presented on 16-4-1990, the first day on which the Court and
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its office opened after the holidays, was presented within the
prescribed period of limitation. On this basis, Shri Desai
submitted, there was no non-compliance of sub-section (1) of
Section 81 of the R.P. Act.‖
42. In paragraphs 12, 13 and 15, the Supreme Court has held as
under:
―12. A similar question relating to applicability of Section 10
of the General Clauses Act arose when the limitation was
prescribed by the Rules as required by the then existing sub-
section (1) of Section 81 in H.H. Raja Harinder Singh v. S.
Karnail Singh [1957 SCR 208 : AIR 1957 SC 271] . It was held
by this Court that Section 10 of the General Clauses Act is
applicable to the presentation of election petitions. Thereafter,
the same view has been taken in Hukumdev Narain Yadav v.
Lalit Narain Mishra [(1974) 2 SCC 133 : (1974) 3 SCR 31] ;
Hari Shanker Tripathi v. Shiv Harsh [(1976) 1 SCC 897 :
(1976) 3 SCR 308] and Simhadri Satya Narayana Rao v. M.
Budda Prasad [1994 Supp (1) SCC 449 : (1991) 1 SCJ 281] .
The later decisions were in relation to election petitions filed
after amendment of Section 81(1) by Act 27 of 1956
prescribing the limitation in this section itself. Shri Jethmalani
tried to distinguish those decisions on the ground that the
earlier decision in H.H. Raja Harinder Singh v. S. Karnail
Singh [1957 SCR 208 : AIR 1957 SC 271] was followed
without noticing the legislative change by amendment of sub-
section (1) of Section 81. In view of the fact that this point was
not raised in the manner it has been done by Shri Jethmalani
before us, it is appropriate that we consider the merit of this
submission.
13. It is settled by the decision of this Court in Ramlal v. Rewa
Coalfields Ltd. [(1962) 2 SCR 762 : AIR 1962 SC 361] (SCR at
p. 767) that the litigant has a right to avail of limitation up to
the last day and his only obligation is to explain his inability to
present the suit/petition on the last day of limitation and each
day thereafter till it is actually presented. This being the basic
premise, it cannot be doubted that the election petitioner in the
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present case was entitled to avail of the entire limitation of 45
days up to the last day, i.e., 14-4-1990 and he was required to
explain the inability of not filing it only on 14-4-1990 and 15-
4-1990 since the petition was actually presented in the High
Court on 16-4-1990. If Section 10 of the General Clauses Act
applies, the explanation is obvious and the election petition
must be treated to have been presented within time.
*
15. In view of the basic premise that the election petitioner is
entitled to avail of the entire limitation of 45 days for
presentation of the election petition as indicated by Ramlal
[(1962) 2 SCR 762 : AIR 1962 SC 361] , if the contrary view is
taken, it would require the election petitioner to perform an
impossible task in a case like the present, to present the
election petition on the last day of limitation on which date the
High Court as well as its office is closed. It is the underlying
principle of this legal maxim which suggests the informed
decision on this point, leading to the only conclusion that
Section 10 of the General Clauses Act applies in the
computation of the limitation prescribed by sub-section (1) of
Section 81 of the R.P. Act for presentation of an election
petition. So computed, there is no dispute that the election
petition presented in the present case on 16-4-1990 was within
limitation and there was no non-compliance of sub-section (1)
of Section 81 of the R.P. Act.‖
43. In so far as the judgment in the case of Rambir Narhargir
Gosai (supra) is concerned, the facts in the said case are the appellant
before the High Court was the plaintiff, who filed a suit of title after
dispossession, for possession with regard to certain lands. The claim
for possession as well as mesne profit was decreed by the Trial Court.
The appellate Court further modified the decree by decreeing joint
possession of only half the interest in the fields/land in the suit and
dismissing the claim for mesne profits. The respondents / defendants
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filed cross-objections. The issue before the Division Bench was
whether Section 4 of the Act of 1963 applies to the cross-objections
filed under Order XLI Rule 22 of the CPC. The appellant urged that
the cross-objection was barred by time. It was not disputed that the
respondents received the memo of appeal on May 19, 1948 and filed
the cross-objection on June 21, 1948. The period of one month which
was given under Order XLI Rule 22 of the CPC expired during the
summer vacation and the cross-objection was filed on the re-opening
after the vacation. The Court held Section 4 of the Act of 1963 and
Section 10 of the Act of 1897 embody the general principles enshrined
in two maxims lex non cogit ad impossibibia and actus curiae
neminem gravabit . Even if section 4 of the Act of 1963 is not
applicable, as contended by the appellant, the respondents can invoke
Section 10 of the Act of 1897. If neither of the provisions can assist
the respondents, they can still invoke the general principles embodied
in judgment of the Supreme Court in Dhanusingh v. Keshoprasad,
AIR 1923 Nag 246 (D) .
44. I am not in agreement with the submissions made by
Mr.Nayar, in view of the position of law as laid down by the Supreme
Court in Assam Urban Water Supply and Sewage Board (supra) and
also in Sagufa Ahmed and Ors. (supra). Since the Judgment in
Sagufa Ahmed and Ors. (supra) is of three Hon’ble Judges , I intend to
deal with the same at the first instance, as according to me, the issue in
hand is covered by the said judgment.
45. In Sagufa Ahmed and Ors. (supra) , the appellants before the
Supreme Court claimed to hold 24.89% shares of a Company namely
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Upper Assam Plywood Products (P) Ltd., which is the first respondent
before the Supreme Court. The appellants moved an application before
the Gauhati Bench of the National Company Law Tribunal (‘NCLT’,
for short) for the winding up of the company. The said petition was
dismissed by the NCLT by an order dated October 25, 2019.
According to the appellants, they applied for a certified copy of order
of the NCLT dated October 25, 2019 on November 21, 2019.
According the appellants, the certified copy of the order dated October
25, 2019 passed by the NCLT was received by their counsel on
December 19, 2019 pursuant to the application made on November 21,
2019. Though the appellants admittedly received certified copy of the
order on December 19, 2019, they chose to file the statutory appeal
before the National Company Law Appellate Tribunal (NCLAT) only
on July 20, 2020.
46. The appeal was filed along with an application for condonation
of delay. By an order dated August 4, 2020, the Appellate Tribunal
dismissed the application for condonation of delay on the ground that
the Tribunal has no power to condone the delay beyond the period of
45 days, resulting in dismissal of the appeal as well. It is against the
dismissal of the application as well as the appeal that the appellants
had approached the Supreme Court.
47. The contention raised by the counsel for the appellants were:
(i) the Tribunal erred in computing the period of limitation from the
date of the order of Tribunal contrary to Section 421 (3) of the
Companies Act, 2013 and (ii) the Appellate Tribunal failed to take note
of the lockdown as well as the order passed by the Supreme Court on
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March 23, 2020 in a Suo Moto Writ Petition (C) No.3/2020, extending
the period of limitation of filing in any proceedings w.e.f March 15,
2020 until further orders.
48. On contention No.1, the Supreme Court referred to the
provisions of Section 420 (3) of the Companies Act, 2013, which
mandates Tribunal to send a copy of every order passed under Section
420 (3) to all the parties concerned. The Supreme Court in paragraphs
9 and 10 noted as under:
―9.XXXX XXXX XXXX
420. Orders of Tribunal (1)-(2)
(3) The Tribunal shall send a copy of every order passed under
this section to all the parties concerned‖.
10. Rule 50 of the National Company Law Tribunal Rules,
2016 also mandates the Registry of the NCLT to send a
certified copy of the final order to the parties concerned free of
cost. However, Rule 50 also enables the Registry of the NCLT
to make available the certified copies with cost as per schedule
of fees in all other cases (meaning thereby ‗to persons who are
not parties‘). Rule 50reads as follows:
“50 . Registry to send certified copy. The Registry shall
send a certified copy of final order passed to the parties
concerned free of cost and the certified copies may be
made available with cost as per the schedule of fees, in
all other cases.‖‖
49. The Supreme Court has also referred to Rule 50 of the
National Company Law Tribunal Rules, 2016 which stipulates that the
Registry shall send a certified copy of the final order to the parties free
of cost. That apart, the Supreme Court has also referred to Section 421
(1) of the Companies Act, 2013 which provides for a remedy of appeal
to the Appellate Tribunal against the order of Tribunal. Sub-Section 3
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of Section 421 prescribes the period of limitation for filing the appeal
and the proviso therein confers a limited discretion upon the Appellate
Tribunal to condone the delay. Sub-Section 3 of Section 421 is
reproduced as under:
“421. Appeal from orders of Tribunal (1)-(2)
(3) Every appeal under subsection (1) shall be filed within a
period of forty five days from the date on which a copy of the
order of the Tribunal is made available to the person
aggrieved and shall be in such form, and accompanied by such
fees, as may be prescribed:
Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of forty five days
from the date aforesaid, but within a further period not
exceeding forty five days, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within that
period.‖
50. The Supreme Court noting the above provision, has in
paragraph 15 held as under:
―By virtue of the proviso to Section 421(3), the Appellate
Tribunal was empowered to condone the delay up to a period
of period of 45 days. This period of 45 days started running
from 02.02.2020 and it expired even according to the
appellants on 18.03.2020. The appellants did not file the
appeal on or before 18.03.2020, but filed it on 20.07.2020. It is
relevant to note that the lock down was imposed only on
24.03.2020 and there was no impediment for the appellants to
file the appeal on or before 18.03.2020. To overcome this
difficulty, the appellants rely upon the order of this Court dated
23.03.2020. This takes us to the second contention of the
appellants.‖
(emphasis supplied)
51. On contention No. 2, the Supreme Court referred to its order
dated March 23, 2020 in the Suo Moto Petition No. 3/2020, and held
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that the appellants cannot take refuge under the said order, as
according to the Supreme Court the said order was intended to benefit
the litigants who are prevented due to the pandemic and lockdown,
from initiating proceedings within the period of limitation prescribed
by general or special law. It also referred to Section 10 of the Act of
1897, which is reproduced as under:
―10. Computation of time.- (1) Where, by any 19 [Central Act]
or Regulation made after the commencement of this Act, any
act or proceeding is directed or allowed to be done or taken in
any Court or office on a certain day or within a prescribed
period, then, if the Court or office is closed on that day or the
last day of the prescribed period, the act or proceeding shall
be considered as done or taken in due time if it is done or
taken on the next day afterwards on which the Court or office
is open:
Provided that nothing in this section shall apply to any act or
proceeding to which the Indian Limitation Act, 1877 (15 of
1877), applies.
(2) This section applies also to all [Central Acts] and,
Regulations made on or after the fourteenth day of January,
1887.‖
52. The Supreme Court in paragraph 19, was of the view that the
principle forming the basis of Section 10 (1) of the Act of 1897, also
finds a place in Section 4 of Act of 1963.
―19. The principle forming the basis of Section 10(1) of the
General Clauses Act, also finds a place in Section 4 of the
Limitation Act, 1963 which reads as follows:
―4. Expiry of prescribed period when court is closed. — Where
the prescribed period for any suit, appeal or application
expires on a day when the court is closed, the suit, appeal or
application may be instituted, preferred or made on the day
when the court reopens.
Explanation.— A court shall be deemed to be closed on any
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day within the meaning of this section if during any part of its
normal working hours it remains closed on that day.‖‖
53. In paragraphs 20-22, the Supreme Court has held as under:
―20. The words ―prescribed period‖ appear in several
Sections of the Limitation Act, 1963. Though these words
―prescribed period‖ are not defined in Section 2 of the
Limitation Act, 1963, the expression is used throughout, only
to denote the period of limitation. We may see a few examples:
20.1. Section 3(1) makes every proceeding filed after the
prescribed period , liable to be dismissed, subject however to
the provisions in Sections 4 to 24.
20.2. Section 5 enables the admission of any appeal or
application after the prescribed period .
20.3. Section 6 uses the expression prescribed period in
relation to proceedings to be initiated by persons under legal
disability.
21. Therefore, the expression ―prescribed period‖ appearing
in Section 4 cannot be construed to mean anything other than
the period of limitation. Any period beyond the prescribed
period , during which the Court or Tribunal has the discretion
to allow a person to institute the proceedings, cannot be taken
to be ―prescribed period‖.
22. In Assam Urban Water Supply and Sewerage Board
Versus Subash Projects and Marketing Limited , this Court
dealt with the meaning of the words ―prescribed period‖ in
paragraphs 13 and 14 as follows:
―13. The crucial words in Section 4 of the 1963 Act are
―prescribed period‖. What is the meaning of these
words?
14. Section 2(j) of the 1963 Act defines‖
―2(j) 'period of limitation' which means the period
of limitation prescribed for any suit, appeal or
application by the Schedule, and 'prescribed
period' means the period of limitation Schedule
computed in accordance with the provisions of
this Act.
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Section 2(j) of the 1963 Act when read in the context of Section
34(3) of the 1996 Act, it becomes amply clear that the
prescribed period for making an application for setting aside
arbitral award is three months. The period of 30 days
mentioned in proviso that follows subsection (3) of Section 34
of the 1996 Act is not the 'period of limitation' and, therefore,
not 'prescribed period' for the purposes of making the
application for setting aside the arbitral award. The period of
30 days beyond three months which the court may extend on
sufficient cause being shown under the proviso appended to
subsection (3) of Section 34 of the 1996 Act being not the
'period of limitation' or, in other words, 'prescribed period', in
our opinion, Section 4 of the 1963 Act is not, at all, attracted to
the facts of the present case.‖
(emphasis supplied)
54. From the above, it is noted that three Hon’ble Judges of the
Supreme Court have held that the words ―prescribed period‖
appearing in Section 4 of the Act of 1963 cannot be construed to mean
anything other than the period of limitation. Any period beyond the
‗prescribed period‘ during which the Court or the Tribunal has the
discretion to allow a person to institute the proceedings cannot be
taken to be ‗prescribed period‘ .
55. The Supreme Court in Assam Urban Water Supply and
Sewage Board (supra), was concerned with a dispute between the
parties which was adjudicated by a sole arbitrator who passed two
awards in favour of the respondents on August 22, 2003. These awards
were received by the appellants on August 26, 2003. On January 2,
2004, the appellants made two applications for setting aside the awards
dated August 22, 2003 under Section 34 of the Act of 1996. These
applications were accompanied by two separate applications for
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extension of time under Section 34 (3) of the Act of 1996. The
District Judge, Kamrup (Gauhati) dismissed the appellant’s
applications under Section 34 on June 1, 2004 and June 5, 2004 on the
ground of limitation.
56. The challenge before the Gauhati High Court in two separate
arbitration appeals, were rejected. It was contended that the Judgment
in Union of India v. Popular Construction Co., (2001) 8 SCC 470,
has no application to the facts of that case. Reliance was placed on
Section 2 (j) of the Act of 1963 which defines the period of limitation
and Section 43 of the Act of 1996 makes the Act of 1963 applicable to
arbitration matters.
57. On the other hand, the case of the respondents was that the
High Court did not commit any error in upholding the view of the
District Judge, Kamrup, Gauhati as the High Court’s view was
consistent with Section 34 (3) of the Act of 1996. The Supreme Court
has referred to provisions of Section 34 (3) which provides that an
application for setting aside the award shall be filed within three
months and that on sufficient cause being shown, the Court may
entertain the application for setting aside the award after the period of
three months and within a further period of 30 days, but not thereafter.
The Supreme Court has in paragraphs 9 to 14 held as under:
“ 9. Section 43(1) of the 1996 Act provides that the 1963 Act
shall apply to arbitrations as it applies to proceedings in court.
The 1963 Act is thus applicable to the matters of arbitration
covered by the 1996 Act save and except to the extent its
applicability has been excluded by virtue of the express
provision contained in Section 34(3) of the 1996 Act.
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10. The facts in the present case are peculiar. The arbitral
awards were received by the appellants on August 26, 2003.
No application for setting aside the arbitral awards was made
by the appellants before elapse of three months from the
receipt thereof. As a matter of fact, three months from the date
of the receipt of the arbitral award by the appellants expired
on November 26, 2003. The District Court had Christmas
vacation for the period from December 25, 2003 to January 1,
2004. On reopening of the court, i.e., on January 2, 2004,
admittedly, the appellants made applications for setting aside
those awards under Section 34 of the 1996 Act. If the period
during which the District Court, Kamrup, Guwahati, remained
closed during Christmas vacation, 2003 is extended and the
appellants get benefit of that period over and above the cap of
thirty days as provided in Section 34(3), then the view of the
High Court and the District Judge cannot be sustained. But
this would depend on the applicability of Section 4 of the 1963
Act.
11. The question, therefore, that falls for our determination is
– whether the appellants are entitled to extension of time under
Section 4 of the 1963 Act in the above facts.
12. Section 4 of the 1963 Act reads as under :-
―4. Expiry of prescribed period when court is closed.-
Where the prescribed period for any suit, appeal or
application expires on a day when the court is closed,
the suit, appeal or application may be instituted,
preferred or made on the day when the court reopens.
Explanation.-A court shall be deemed to be closed on
any day within the meaning of this section if during any
part of its normal working hours it remains closed on
that day.‖
The above Section enables a party to institute a suit,
prefer an appeal or make an application on the day
court reopens where the prescribed period for any suit,
appeal or application expires on the day when the court
is closed.
13. The crucial words in Section 4 of the 1963 Act are
'prescribed period'. What is the meaning of these words?
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14. Section 2(j) of the 1963 Act defines 'period of limitation'
which means the period of limitation prescribed for any suit,
appeal or application by the Schedule, and 'prescribed period'
means the period of limitation computed in accordance with
the provisions of this Act.
Section 2(j) of the 1963 Act when read in the context of
Section 34(3) of the 1996 Act, it becomes amply clear that the
prescribed period for making an application for setting aside
arbitral award is three months. The period of 30 days
mentioned in proviso that follows sub-section (3) of Section 34
of the 1996 Act is not the 'period of limitation' and, therefore,
not 'prescribed period' for the purposes of making the
application for setting aside the arbitral award. The period of
30 days beyond three months which the court may extend on
sufficient cause being shown under the proviso appended to
sub-section (3) of Section 34 of the 1996 Act being not the
'period of limitation' or, in other words, 'prescribed period', in
our opinion, Section 4 of the 1963 Act is not, at all, attracted to
the facts of the present case.‖
58. From the above narration of the Supreme Court in Assam
Urban Water Supply and Sewage Board (supra) , it is clear that the
―prescribed period‖ is the three months’ time provided under sub-
section 3 of Section 34 of the Act of 1996. The period of 30 days
beyond three months which the Court may extend on sufficient cause
is not the period of limitation or in other words, the ‗prescribed period‘
and as such, there is no applicability of Section 4 of the Act of 1963.
59. Reading the above with the conclusion of the Supreme Court
in Sagufa Ahmed and Ors. (supra) which also refers to Section 10 of
the Act of 1897 though, the 30 days expired on June 30, 2022, during
the period of vacation, the petitioner cannot get the advantage of
Section 10 of the Act of 1897 being pari-materia to Section 4 of the
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Act of 1963.
60. Having said that, Mr. Nayar has also relied upon the
Notification(supra),dated May 20, 2022, of this Court more
specifically clause 5 thereof, which reads as under:
―5. Limitation will not run during the vacation period for
purposes of institution of Civil and Criminal Cases.‖
61. I find that Clause 7 of the notification also has some effect on
the issue in hand and is reproduced as under:
“7. Suits, Appeals, Applications or other proceedings,
which are to be filed on the re-opening day, may also be
instituted /preferred or made in regular course between
th
10.00 A.M. and 4.00 P.M. from Monday, the 27 June,
nd
2022 to Saturday, the 2 July, 2022 as per convenience of
the parties though for the purpose of limitation the Court
re-opens only on 04.07.2022.‖
62. This said submission of Mr. Nayar has been countered by Mr.
Mehta by stating that the Clause 7, only enables the filing of
proceedings, i.e., "which are to be filed on the re-opening day" on July
04, 2022, as is clear from the opening words of the said clause. He
also stated that, Clause 7 is merely a manifestation of Section 4 of the
Act of 1963 and Section 10 of the Act of 1897, both of which are
inapplicable once the ‗prescribed period‘ of limitation of three months
has expired prior to the commencement of vacations. I agree with the
submission of Mr. Mehta.
63. The plea of Mr. Nayar that, as the additional period of 30 days
expired during vacation, it was impossible for the petitioner to file the
petition during that period, is also unsustainable for the above reasons.
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Mr. Mehta is also right to say that, Clause 7 of the notification dated
May 20, 2022, is primarily relatable to Section 4 of the Act of 1963
and Section 10 of the Act of 1897, which in fact contemplates the
stipulation / position when limitation is expiring on a public holiday. In
fact, Clause 7 of the notification shall not help the case of the
petitioner, rather it demolishes the case as set up by the petitioner,
inasmuch as, it clearly contemplates that suits, appeals, applications or
other proceedings which are to be filed on the re-opening day may also
be instituted / preferred or made in regular course between 10:00 AM
and 4:00 PM from Monday, June 27, 2022 to Saturday, July 2, 2022 as
per the convenience of the parties, though for the purpose of limitation,
the Court re-opens only on July 4, 2022. In other words, the petitioner
could have filed the appeal on or before June 30, 2022, as he was
within the extended period of 30 days as permissible under Section 34
(3) of the Act of 1996. So, it is not a case where the petitioner could
not have filed the petition before the expiry of the extended period.
64. One of the submissions of Mr. Nayar was that the Supreme
Court in case of Sagufa Ahmed and Ors. (supra), has only referred to
Section 10 (1) of the Act of 1897 and has not discussed the
applicability of the said section in a situation where Section 4 of the
Act of 1963 is inapplicable.
65. I am not in agreement with the said submission of Mr. Nayar
in view of paragraph 19 of the judgment in Sagufa Ahmed and Ors.
(supra), wherein, the Supreme Court has clearly held that forming the
basis of Section 10 (1) of the Act of 1897 also finds a place in Section
4 of the Act of 1963. In that perspective, the Supreme Court in
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paragraph 21 has held that the expression appearing in Section 4
cannot be construed to mean anything other than the period of
limitation. Any period beyond the ‗prescribed period‘ during which
the Court or Tribunal has discretion to allow a person to institute the
proceedings cannot be taken to be a ‗prescribed period‘ .
66. I must clarify here that much reliance has been placed by Mr.
Nayar on the judgment of the Supreme Court in Sridevi Datla (supra).
In the said case the Supreme Court has not considered the issue from
the perspective whether the extended period of 30 days can be
construed as a ‗prescribed period‘ so as to make Section 10 of the Act
of 1897 applicable. Section 10 would only come into play during /
within the ‗prescribed period‘, which is 30 days under the NGT Act to
file an appeal.
67. In view of my discussion above, I am of the view that the
application for condonation of delay cannot be accepted. The same is
dismissed. Consequently, the petition is also rejected.
IA 11690/2022 (for stay)
In view of the order passed in the petition, the present application
has become infructuous and is dismissed as such.
V. KAMESWAR RAO, J
/aky
FEBRUARY 07, 2023
Signature Not Verified
Digitally Signed By:ANIL
KUMAR YADAV
Signing Date:08.02.2023
16:40:59
OMP (COMM) 316/2022 Page 31 of 31