whether S 14 of Limitation Act would apply to Section 34(3) of Arbitration and Conciliation Act, 1996.

 Quite apart from Mukri Gopalan’s case being out of step
with at least five earlier binding judgments of this Court, it does
not square also with the subsequent judgment in Consolidated
Engg. Enterprises v. Principal secy., Irrigation Deptt., (2008)
7 SCC 169. A 3-Judge Bench of this Court was asked to
decide whether Section 14 of the Limitation Act would apply to
Section 34(3) of the Arbitration and Conciliation Act, 1996. After
discussing the various provisions of the Arbitration Act and the
Limitation Act, this Court held:
“23. At this stage it would be relevant to ascertain
whether there is any express provision in the Act of
1996, which excludes the applicability of Section 14
of the Limitation Act. On review of the provisions of
the Act of 1996 this Court finds that there is no
provision in the said Act which excludes the
applicability of the provisions of Section 14 of the
Limitation Act to an application submitted under
Section 34 of the said Act. On the contrary, this
Court finds that Section 43 makes the provisions of
the Limitation Act, 1963 applicable to arbitration
proceedings. The proceedings under Section 34 are
for the purpose of challenging the award whereas
the proceeding referred to under Section 43 are the
original proceedings which can be equated with a
suit in a court. Hence, Section 43 incorporating the
Limitation Act will apply to the proceedings in the
arbitration as it applies to the proceedings of a suit
in the court. Sub-section (4) of Section 43, inter alia,
provides that where the court orders that an arbitral
award be set aside, the period between the
commencement of the arbitration and the date of
the order of the court shall be excluded in
computing the time prescribed by the Limitation Act,
1963, for the commencement of the proceedings
with respect to the dispute so submitted. If the
period between the commencement of the
arbitration proceedings till the award is set aside by
the court, has to be excluded in computing the
period of limitation provided for any proceedings
with respect to the dispute, there is no good reason
as to why it should not be held that the provisions of
Section 14 of the Limitation Act would be applicable

to an application submitted under Section 34 of the
Act of 1996, more particularly where no provision is
to be found in the Act of 1996, which excludes the
applicability of Section 14 of the Limitation Act, to an
application made under Section 34 of the Act. It is to
be noticed that the powers under Section 34 of the
Act can be exercised by the court only if the
aggrieved party makes an application. The
jurisdiction under Section 34 of the Act, cannot be
exercised suo motu. The total period of four months
within which an application, for setting aside an
arbitral award, has to be made is not unusually long.
Section 34 of the Act of 1996 would be unduly
oppressive, if it is held that the provisions of Section
14 of the Limitation Act are not applicable to it,
because cases are no doubt conceivable where an
aggrieved party, despite exercise of due diligence
and good faith, is unable to make an application
within a period of four months. From the scheme
and language of Section 34 of the Act of 1996, the
intention of the legislature to exclude the
applicability of Section 14 of the Limitation Act is not
manifest. It is well to remember that Section 14 of
the Limitation Act does not provide for a fresh period
of limitation but only provides for the exclusion of a
certain period. Having regard to the legislative
intent, it will have to be held that the provisions of
Section 14 of the Limitation Act, 1963 would be
applicable to an application submitted under Section
34 of the Act of 1996 for setting aside an arbitral
award.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4367 OF 2004
M.P. STEEL CORPORATION …APPELLANT

VERSUS
COMMISSIONER OF CENTRAL
EXCISE ...RESPONDENT
Citation;(2015)7 SCC58
R.F. Nariman, J.

1. The facts giving rise to the present appeal are as follows.
The appellant is engaged in ship breaking activity at Alang Ship
Breaking Yard. The appellant imported a vessel, namely, M.V.
Olinda, for the purpose of breaking the same, and filed a Bill of
Entry when the vessel was imported on 7.2.1992. It declared in
the said Bill of Entry that the Light Displacement Tonnage of the
vessel was 7009 metric tons. On 19.2.1992, the appellant was
informed by the Superintendent of Customs and Central Excise
Alang that the Light Displacement Tonnage of the ship is
1Page 2
actually 8570 tons and that customs duty was to be levied on
this tonnage. On 3.3.1992, the appellant cleared the vessel on
payment of customs duty on the basis of 7009 metric tons and
executed a bank guarantee for Rs.19,90,275/- being the
difference in customs duty on 1561 metric tons. On 25.3.1992,
the Collector of Customs, Rajkot, directed the Assistant
Collector, Bhavnagar to encash the bank guarantee furnished
by the appellant. On 2.4.1992, the Superintendent of Customs
and Central Excise sent a letter to the appellant communicating
the decision of the Collector, as aforesaid. The bank guarantee
was duly encashed on 3.4.1992. After protesting against the
said illegal action of the Department in encashing the bank
guarantee, the appellant preferred an appeal against the
Superintendent’s letter dated 2.4.1992 and the Collector’s order
dated 25.3.1992 before CEGAT. On 23.6.1998, the Appellate
Tribunal allowed the appeal and set aside the order of the
Collector dated 25.3.1992. In the year 2000, the Department
preferred an appeal before this Court. On 12.3.2003, this
Court allowed the appeal holding:
2Page 3
“This appeal is against a judgment dated
23.6.1998 passed by the Customs, Excise And Gold
(Control) Appellate Tribunal, West Regional Bench
at Mumbai.
Facts briefly stated are that the respondent
filed a Bill of Entry in respect of ship M.V. Olinda
imported by them for purposes of breaking. The
respondent showed the light displacement tonnage
(LDT) as 7009 metric tons. This declaration was
not accepted by the Superintendent of Customs and
Central Excise. The respondent, thus, approached
the Assistant Collector. The question was how LDT
was to be calculated. It appears that between the
Assistant Collector and the Collector there was
some internal correspondence on this aspect. The
Collector took a policy decision on how LDT was to
be calculated. The Collector conveyed this decision
to the Assistant Collector by his letter dated
25.3.1992. Pursuant thereto the Superintendent of
Customs and Central Excise passed an order dated
2
nd April, 1992 in respect of vessel M.V. “Olinda”. Of
course the order dated 2nd April, 1992 is based on
the decision of the Collector. However, the order
remains that of the Superintendent of Customs and
Central Excise.
The respondent filed an appeal directly before
CEGAT. CEGAT has disposed of this appeal by the
impugned order. CEGAT negatived a contention
that the appeal was not maintainable before them
on the basis that the Superintendent’s order is
nothing more than a communication of the order
passed by the Collector (Appeals). CEGAT held
that the appeal was in fact against the Collector’s
order.
In our view, the reasoning of CEGAT cannot
be sustained. The decision taken by the Collector
was not taken in his capacity as Collector (Appeals).
Also the order by which respondent is aggrieved is
3Page 4
the order passed by the Superintendent. An appeal
against that order has to be filed before the
Commissioner (Appeals) under Section 128. By
virtue of Section 129-A, CEGAT has no jurisdiction
to entertain such an appeal.
It is clear that the impugned order is passed
without any jurisdiction. Therefore, it cannot be
sustained. We, thus, set aside the order. The
appeal is accordingly allowed. There will be no
order as to costs.
We clarify that we have not gone into the
merits of the matter and that it will be open to the
respondent to adopt such remedy as they may be
advised, if in law they are entitled to do so.”
2. After this judgment, on 23.5.2003, the appellant filed an
appeal before the Commissioner (Appeals) against the order
passed by the Superintendent, Customs dated 2.4.1992. On
4.8.2003, an application to condone delay in filing the appeal
was made in the following terms:
“As appeal against the order of the Supdt. of
Customs was filed by us within 60 days of the
receipt of the certified true copy of the judgment of
the Hon’ble Supreme Court. It is our respectful
submission that since the appeal was filed by us
before the correct forum with due dispatch after
receipt of the Supreme Court’s judgment, there has
been no delay in filing the appeal. It is well settled
now that the time taken for pursuing a remedy
before another appellate Forum is to be excluded
for the purpose of computing the period for filing an
appeal. (Union Carbide India Ltd. Vs. CC 1998 (77)
4Page 5
ECR 376, Karnataka Minerals & Mfg. Co. Ltd. Vs.
CCE 1998 (101) ELT 627).”
3. By an order dated 27.10.2003, the Commissioner of
Customs (Appeals) dismissed the appeal on the ground of
delay stating that the appeal had been filed way beyond the
period of 60 days plus 30 days provided for in Section 128 of
the Customs Act. Against this order, CESTAT dismissed the
appeal of the appellant stating that the Commissioner (Appeals)
had no power to condone delay beyond the period specified in
Section 128.
4. Shri Viswanathan, learned senior advocate appearing on
behalf of the appellant argued before us that the entire period
starting from 25.3.1992 up till 12.3.2003 ought to be excluded
by applying Section 14 of the Limitation Act. According to him,
Section 14 of the Limitation Act would apply to exclude this
period from the period of 90 days allowed in filing an appeal
filed to the Collector (Appeals) inasmuch as vide Section 29 (2)
of the Limitation Act Section 14 of the Limitation Act would also
apply to Tribunals set up under special or local Acts. According
to him, the entire period with which he was prosecuting, with
5Page 6
due diligence, the abortive appeal filed before CEGAT should
be excluded, which would include the period even prior to
22.6.1992 when the abortive appeal was filed. As an
alternative submission, on the assumption that Section 14
applied only to Courts and not to Tribunals, he submitted that
the principle of Section 14 would then apply. According to him,
Section 128 of the Customs Act before its amendment in 2001
would be attracted on the facts of this case giving him a period
of 90 days plus an extended period of a further period of 90
days within which the present appeal could be filed. This being
the case, on an application of Section 14, the appeal would be
filed with no delay at all even if the period from 3.4.1992 to
22.6.1992 and 12.3.2003 to 23.5.2003 is to be taken into
account, as that would be less than 180 days given to file the
appeal under the old Section 128. He cited a number of
authorities which we will deal with in the course of this judgment
in support of all the aforesaid propositions.
5. Shri A.K. Sanghi, learned senior advocate appearing on
behalf of the Department argued that Section 128 of the
Customs Act excluded the application of Section 14 of the
6Page 7
Limitation Act in that the scheme of the Section is that only a
limited period should be given to an assessee beyond which
the appeal would become time barred. In the present case,
Section 128 as amended post 2001 would apply to the facts of
this case and on the appellant’s own showing the appeal is out
of time by eleven and a half years. Section 128 only gives the
appellant 60 days plus another 30 days which have long gone.
He also argued that Section 14 of the Limitation Act would not
apply to Tribunals but only to Courts, and the Collector
(Appeals) was at best a quasi-judicial Tribunal. Further,
according to him, no question of any principle of section 14
would get attracted. In fact, according to him, there is no
pleading qua Section 14 at all – the only pleading is for
condonation of delay and not for exclusion of time. Section 14
requires that five necessary ingredients must be satisfied on
facts before it can be attracted. The appellant has neither
pleaded nor proved any of these ingredients. He also cited a
number of authorities which we will refer to in the course of this
judgment.
7Page 8
Ingredients of Section 14.
Section 14 of the Limitation Act reads as follows:
“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 the Code of Civil Procedure, 1908
(5 of 1908), the provisions of sub-section (1) shall
apply in relation to a fresh suit instituted on
permission granted by the court under Rule 1 of that
Order, where such permission is granted on the
ground that the first suit must fail by reason of a
defect in the jurisdiction of the court or other cause
of a like nature.
Explanation.—For the purposes of this section,—
(a) in excluding the time during which a former civil
proceeding was pending, the day on which that
8Page 9
proceeding was instituted and the day on which it
ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall
be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be
deemed to be a cause of a like nature with defect of
jurisdiction.”
6. Shri A.K. Sanghi, learned senior counsel appearing on
behalf of the Department has stated that at no point of time has
the appellant taken up a plea based on Section 14. Neither has
the appellant met with any of the five conditions set out in
paragraph 21 of Consolidated Engg. Enterprises v. Principal
secy., Irrigation Deptt., (2008) 7 SCC 169, which reads as
follows:-
“21. Section 14 of the Limitation Act deals with
exclusion of time of proceeding bona fide in a court
without jurisdiction. On analysis of the said section,
it becomes evident that the following conditions
must be satisfied before Section 14 can be pressed
into service:
(1) Both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with
due diligence and in good faith;
(3) The failure of the prior proceeding was due to
defect of jurisdiction or other cause of like nature;
9Page 10
(4) The earlier proceeding and the latter proceeding
must relate to the same matter in issue and;
(5) Both the proceedings are in a court.”
7. Technically speaking, Shri A.K. Sanghi, may be correct.
However, in an application for condonation of delay the
appellant pointed out that they were pursuing a remedy before
another appellate forum which ought to be excluded. We deem
this averment sufficient for the appellant to contend that Section
14 of the Limitation Act or principles laid down under it would be
attracted to the facts of this case.
We might also point out that conditions 1 to 4 mentioned
in the Consolidated Engineering case have, in fact, been met
by the appellant. It is clear that both the prior and subsequent
proceedings are civil proceedings prosecuted by the same
party. The prior proceeding had been prosecuted with due
diligence and in good faith, as has been explained in
Consolidated Engineering itself. These phrases only mean that
the party who invokes Section 14 should not be guilty of
negligence, lapse or inaction. Further, there should be no
pretended mistake intentionally made with a
10Page 11
view to delaying the proceedings or harassing the opposite
party. On the facts of this case, as the earlier Supreme Court
order dated 12.3.2003 itself points out, there was some
confusion as to whether what was appealed against was the
Superintendent’s order or the Collector’s order. The appellant
bona fide believed that it was the Collector’s order which was
appealed against and hence an appeal to CEGAT would be
maintainable. This contention, however, ran into rough weather
in this Court. Further, the time taken between 3.4.1992 and
22.6.1992 to file an appeal cannot be said to be inordinately
long. Thus, neither was there any negligence, lapse or inaction
on facts nor did the appellant delay proceedings to harass the
Department by pretending that there was a mistake. Condition
(3) was also directly met – this Court in the order dated
12.3.2003 set aside CEGAT’s order on the ground that it was
without jurisdiction. It is indisputable that the earlier proceeding
and the later proceeding relate to the same matter in issue and
thus condition 4 is also met. Condition 5, however, has not
been met as both the proceedings are before a quasi-judicial
Tribunal and not in a Court. This, however, is not fatal to the
11Page 12
present proceeding as what is being held by us in this judgment
is that despite the fact that Section 14 of the Limitation Act may
not apply, yet the principles of Section 14 will get attracted to
the facts of the present case. It is in this way that we now
proceed to consider the law on the subject.
Whether the Limitation Act applies only to Courts and not
to Tribunals
8. A perusal of the Limitation Act, 1963 would show that the
bar of limitation contained in the Schedule to the Act applies to
suits, appeals, and applications. “Suit” is defined in Section 2(l)
as not including an appeal or an application. The word “Court”
is not defined under the Act. However, it appears in a number
of its provisions (See: Sections 4,5,13,17(2),21). A perusal of
the Schedule would show that it is divided into three divisions.
The first division concerns itself with suits. Articles 1 to 113 all
deal with “suits”.
9. Sections 2(a),(e) and (i) are material in that they define
what is meant by an applicant, a plaintiff and a defendant.
“2. Definitions.—In this Act, unless the context
otherwise requires,—
12Page 13
(a) “applicant” includes—
(i) a petitioner;
(ii) any person from or through
whom an applicant derives his
right to apply;
(iii) any person whose estate is
represented by the applicant as
executor, administrator or other
representative;
(e) “defendant” includes—
(i) any person from or through
whom a defendant derives his
liability to be sued;
(ii) any person whose estate is
represented by the defendant as
executor, administrator or other
representative;
(i) “plaintiff” includes—
(i) any person from or through
whom a plaintiff derives his right to
sue;
(ii) any person whose estate is
represented by the plaintiff as
executor, administrator or other
representative;”
10. Section 3(2) which is material states as follows:
“3(2) For the purposes of this Act-
(a)A suit is instituted-
(i)In an ordinary case, when
the plaint is presented to
the proper officer;
(ii)In the case of a pauper,
when his application for
13Page 14
leave to sue as a pauper is
made; and
(iii)In the case of a claim
against a company which is
being wound up by the
court, when the claimant
first sends in his claim to
the official liquidator;
(b) Any claim by way of a set off
or a counter claim, shall be
treated as a separate suit and
shall be deemed to have been
instituted –
(i)in the case of a set off, on
the same date as the suit in
which the set off is pleaded;
(ii)in the case of a counter
claim, on the date on which
the counter claim is made in
court;
(c)an application by notice of
motion in a High Court is made
when the application is
presented to the proper officer of
that court.”
11. A perusal of Section 3(2) shows that “suits” are
understood as actions begun in courts of law established under
the Constitution of India.
12. In the Schedule, the second division concerns itself with
appeals. These appeals under Articles 114 to 117, are either
under the Civil Procedure Code, the Criminal Procedure Code,
or intra-court appeals so far as the High Courts are concerned.
14Page 15
These appeals again are only to “Courts” established under the
Constitution.
13. Equally, in the third division, all applications that are
referred to are under Articles 118 to 137 only to “Courts”, either
under the Civil Procedure Code or under other enactments.
14. Sections 13, 21 and Articles 124, 130 and 131 of the
Limitation Act are again important in understanding what is
meant by the expression “Court”. They are set out below:
“13. Exclusion of time in cases where leave to
sue or appeal as a pauper is applied for.—In
computing the period of limitation prescribed for any
suit or appeal in any case where an application for
leave to sue or appeal as a pauper has been made
and rejected, the time during which the applicant
has been prosecuting in good faith his application
for such leave shall be excluded, and the court may,
on payment of the court fees prescribed for such
suit or appeal, treat the suit or appeal as having the
same force and effect as if the court fees had been
paid in the first instance.
21. Effect of substituting or adding new plaintiff
or defendant.—(1) Where after the institution of a
suit, a new plaintiff or defendant is substituted or
added, the suit shall, as regards him, be deemed to
have been instituted when he was so made a party:
Provided that where the court is satisfied that the
omission to include a new plaintiff or defendant was
due to a mistake made in good faith it may direct
that the suit as regards such plaintiff or defendant
15Page 16
shall be deemed to have been instituted on any
earlier date.
(2) Nothing in sub-section (1) shall apply to a
case where a party is added or substituted owing to
assignment or devolution of any interest during the
pendency of a suit or where a plaintiff is made a
defendant or a defendant is made a plaintiff.
Schedule
124. For a review of judgment by
a court other than the
Supreme Court.
Thirty days The date of the
decree or order.
130. For leave to appeal as a
pauper --
(a) to the High Court; Sixty days The date of
decree appealed
from.
(b) to any other court. Thirty days The date of
decree appealed
from.
131. To any court for the exercise
of its powers of revision
under the Code of Civil
Procedure, 1908 (5 of 1908),
or the Code of Criminal
Procedure, 1898 (5 of 1898).
Ninety days The date of the
decree or order
or sentence
sought to be
revised.
It will be seen that suits and appeals that are covered by
the Limitation Act are so covered provided court fees prescribed
for such suits or appeals are paid. Under Section 13, set out
hereinabove, this becomes clear. That is why time is excluded
in cases where leave to file a suit or an appeal as a pauper is
granted in the circumstances mentioned in the Section. ‘Courts’
16Page 17
that are mentioned in this Section are therefore courts as
understood in the strict sense of being part of the Judicial
Branch of the State.
15. Section 21 also makes it clear that the suit that the
Limitation Act speaks of is instituted only by a plaintiff against a
defendant. Both plaintiff and defendant have been defined as
including persons through whom they derive their right to sue
and include persons whose estate is represented by persons
such as executors, administrators or other representatives.
This again refers only to suits filed in courts as is understood by
the Code of Civil Procedure. In this regard, Section 26 of the
CPC states:
“Section 26- Institution of suits
(1)Every suit shall be instituted by the
presentation of a plaint or in such other
manner as may be prescribed.
(2) In every plaint, facts shall be proved by
affidavit.”
16. When it comes to applications, again Articles 124, 130
and 131 throw a great deal of light. Only review of judgments
by a “court” is contemplated in the Third Division in the
17Page 18
Schedule. Further, leave to appeal as a pauper again can be
made either to the High Court or only to any other court vide
Article 130. And by Article 131, a revision petition filed only
before Courts under the Code of Civil Procedure Code or the
Code of Criminal Procedure are referred to. On a plain reading
of the provisions of the Limitation Act, it becomes clear that
suits, appeals and applications are only to be considered (from
the limitation point of view) if they are filed in courts and not in
quasi-judicial bodies.
17. Now to the case law. A number of decisions have
established that the Limitation Act applies only to courts and not
to Tribunals. The distinction between courts and quasi-judicial
decisions is succinctly brought out in Bharat Bank Ltd. v.
Employees of Bharat Bank Ltd., 1950 SCR 459. This root
authority has been followed in a catena of judgments. This
judgment refers to a decision of the King’s Bench in Cooper v.
Wilson. The relevant quotation from the said judgment is as
follows:-
“A true judicial decision presupposes an existing
dispute between two or more parties, and then
involves four requisites: (1) The presentation (not
18Page 19
necessarily orally) of their case by the parties to the
dispute; (2) if the dispute between them is a
question of fact, the ascertainment of the fact by
means of evidence adduced by the parties to the
dispute and often with the assistance of argument
by or on behalf of the parties on the evidence; (3) if
the dispute between them is a question of law, the
submission of legal argument by the parties, and (4)
a decision which disposes of the whole matter by a
finding upon the facts in dispute and application of
the law of the land to the facts so found, including
where required a ruling upon any disputed question
of law. A quasi-judicial decision equally presupposes
an existing dispute between two or more parties and
involves (1) and (2), but does not necessarily
involve (3) and never involves (4). The place of (4)
is in fact taken by administrative action, the
character of which is determined by the Minister's
free choice.”
18. Under our constitutional scheme of things, the judiciary is
dealt with in Chapter IV of Part V and Chapter V of Part VI.
Chapter IV of Part V deals with the Supreme Court and Chapter
V of Part VI deals with the High Courts and courts subordinate
thereto. When the Constitution uses the expression “court”, it
refers to this Court system. As opposed to this court system is
a system of quasi-judicial bodies called Tribunals. Thus,
Articles 136 and 227 refer to “courts” as distinct from “tribunals”.
The question in this case is whether the Limitation Act extends
19Page 20
beyond the court system mentioned above and embraces
within its scope quasi-judicial bodies as well.
19. A series of decisions of this Court have clearly held that
the Limitation Act applies only to courts and does not apply to
quasi-judicial bodies. Thus, in Town Municipal Council,
Athani v. Presiding Officer, Labour Court, (1969) 1 SCC 873,
a question arose as to what applications are covered under
Article 137 of the Schedule to the Limitation Act. It was argued
that an application made under the Industrial Disputes Act to a
Labour Court was covered by the said Article. This Court
negatived the said plea in the following terms:-
“12. This point, in our opinion, may be looked at
from another angle also. When this Court earlier
held that all the articles in the third division to the
schedule, including Article 181 of the Limitation Act
of 1908, governed applications under the Code of
Civil Procedure only, it clearly implied that the
applications must be presented to a court governed
by the Code of Civil Procedure. Even the
applications under the Arbitration Act that were
included within the third division by amendment of
Articles 158 and 178 were to be presented to courts
whose proceedings were governed by the Code of
Civil Procedure. As best, the further amendment
now made enlarges the scope of the third division of
the schedule so as also to include some
applications presented to courts governed by the
Code of Criminal Procedure. One factor at least
20Page 21
remains constant and that is that the applications
must be to courts to be governed by the articles in
this division. The scope of the various articles in this
division cannot be held to have been so enlarged as
to include within them applications to bodies other
than courts, such as a quasi judicial tribunal, or
even an executive authority. An Industrial Tribunal
or a Labour Court dealing with applications or
references under the Act are not courts and they are
in no way governed either by the Code of Civil
Procedure or the Code of Criminal Procedure. We
cannot, therefore, accept the submission made that
this article will apply even to applications made to
an Industrial Tribunal or a Labour Court. The
alterations made in the article and in the new Act
cannot, in our opinion, justify the interpretation that
even applications presented to bodies, other than
courts, are now to be governed for purposes of
limitation by Article 137.”
Similarly, in Nityananda, M. Joshi & Ors. v. Life Insurance
Corporation & Ors., (1969) 2 SCC 199, this Court followed the
judgment in Athani’s case and turned down a plea that an
application made to a Labour Court would be covered under
Article 137 of the Limitation Act. This Court emphatically stated
that Article 137 only contemplates applications to courts in the
following terms:
“3. In our view Article 137 only contemplates
applications to Courts. In the Third Division of the
Schedule to the Limitation Act, 1963 all the other
applications mentioned in the various articles are
21Page 22
applications filed in a court. Further Section 4 of the
Limitation Act, 1963, provides for the contingency
when the prescribed period for any application
expires on a holiday and the only contingency
contemplated is “when the court is closed.” Again
under Section 5 it is only a court which is enabled to
admit an application after the prescribed period has
expired if the court is satisfied that the applicant had
sufficient cause for not preferring the application. It
seems to us that the scheme of the Indian Limitation
Act is that it only deals with applications to courts,
and that the Labour Court is not a court within the
Indian Limitation Act, 1963.'”
20. In Kerala State Electricity Board v. T.P. Kunhaliumma,
(1976) 4 SCC 634, a 3-Judge Bench of this Court followed the
aforesaid two judgments and stated:-
“22. The conclusion we reach is that Article 137 of
the 1963 Limitation Act will apply to any petition or
application filed under any Act to a civil court. With
respect we differ from the view taken by the
two-judge bench of this Court in Athani Municipal
Council case [(1969) 1 SCC 873 : (1970) 1 SCR 51]
and hold that Article 137 of the 1963 Limitation Act
is not confined to applications contemplated by or
under the Code of Civil Procedure. The petition in
the present case was to the District Judge as a
court. The petition was one contemplated by the
Telegraph Act for judicial decision. The petition is an
application falling within the scope of Article 137 of
the 1963 Limitation Act.”
This judgment is an authoritative pronouncement by a 3-Judge
Bench that the Limitation Act applies only to courts and not to
22Page 23
quasi-judicial Tribunals. Athani’s case was dissented from on a
different proposition – that Article 137 is not confined to
applications under the Code of Civil Procedure alone. So long
as an application is made under any statute to a Civil Court,
such application will be covered by Article 137 of the Limitation
Act.
21. The stage is now set for a decision on which wide ranging
arguments were made by counsel on both sides. In
Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools
and Plants, Kanpur, (1975) 4 SCC 22, a 3-Judge Bench was
confronted with whether Section 14 of the Limitation Act applied
to the Sales Tax authorities under the U.P. Sales Tax Act. In no
uncertain terms, this Court held:-
“8. Mr Karkhanis is right that this matter is no
longer res Integra. In Shrimati Ujjam Bai v. State of
U.P. [AIR 1962 SC 1621 : (1963) 1 SCR 778]
Hidayatullah, J. (as he then was) speaking for the
Court, observed:
“The Taxing authorities are instrumentalities of the
State. They are not a part of the legislature, nor are
they a part of the Judiciary. Their functions are the
assessment and collection of taxes and in the
process of assessing taxes, they follow a pattern of
action which is considered judicial. They are not
thereby converted into courts of civil judicature.
23Page 24
They still remain the instrumentalities of the State
and are within the definition of ‘State’ in Article 12.”
9. The above observations were quoted with
approval by this Court in Jagannath Prasad
case [AIR 1963 SC 416 : (1963) 2 SCR 850 : 14
STC 536] and it was held that a Sales Tax Officer
under U.P. Sales Tax Act, 1948 was not
a court within the meaning of Section 195 of the
Code of Criminal Procedure although he is required
to perform certain quasi-judicial functions. The
decision in Jagannath Prasad case it seems, was
not brought to the notice of the High Court. In view
of these pronouncements of this Court, there is no
room for argument that the Appellate Authority and
the Judge (Revisions) Sales tax exercising
jurisdiction under the Sales Tax Act, are “courts”.
They are merely Administrative Tribunals and “not
courts”. Section 14, Limitation Act, therefore, does
not, in terms apply to proceedings before such
tribunals.”
It then went on to discuss whether the general principle
underlying Section 14 would be applicable and held:-
“12. Three features of the scheme of the above
provision are noteworthy. The first is that no
limitation has been prescribed for the suo motu
exercise of its jurisdiction by the revising authority.
The second is that the period of one year prescribed
as limitation for filing an application for revision by
the aggrieved party is unusually long. The third is
that the revising authority has no discretion to
extend this period beyond a further period of six
months, even on sufficient cause shown. As rightly
pointed out in the minority judgment of the High
Court, pendency of proceedings of the nature
24Page 25
contemplated by Section 14(2) of the Limitation Act,
may amount to a sufficient cause for condoning the
delay and extending the limitation for filing a
revision application, but Section 10(3-B) of the
Sales Tax Act gives no jurisdiction to the revising
authority to extend the limitation, even in such a
case, for a further period of more than six months.
13. The three stark features of the scheme and
language of the above provision, unmistakably
show that the legislature has deliberately excluded
the application of the principles underlying Sections
5 and 14 of the Limitation Act, except to the extent
and in the truncated form embodied in sub-section
(3-B) of Section 10 of the Sales Tax Act. Delay in
disposal of revenue matters adversely affects the
steady inflow of revenues and the financial stability
of the State. Section 10 is therefore designed to
ensure speedy and final determination of fiscal
matters within a reasonably certain time-schedule.
14. It cannot be said that by excluding the
unrestricted application of the principles of Sections
5 and 14 of the Limitation Act, the legislature has
made the provisions of Section 10 unduly
oppressive. In most cases, the discretion to extend
limitation, on sufficient cause being shown for a
further period of six months only, given by
sub-section (3-B) would be enough to afford relief.
Cases are no doubt conceivable where an
aggrieved party, despite sufficient cause, is unable
to make an application for revision within this
maximum period of 18 months. Such harsh cases
would be rare. Even in such exceptional cases of
extreme hardship, the revising authority may, on its
own motion, entertain revision and grant relief.”
22. It is clear that this judgment clearly laid down two things –
one that authorities under the Sales Tax Act are not “courts” and
25Page 26
thus, the Limitation Act will not apply to them. It also laid down
that the language of Section 10 (3-B) of the U.P. Sales Tax Act
made it clear that an unusually long period of limitation had
been given for filing a revision application and therefore said
that the said Section as construed by the Court would not be
unduly oppressive. Most cases would, according to the Court,
be filed within a maximum period of 18 months but even in
cases, rare as they are, filed beyond such period, the revising
authority may on its own motion entertain the revision and grant
relief. Given the three features of the U.P. Sales Tax Act
scheme, the Court held that the legislature deliberately
excluded the application of the principle underlying Section 14
except to the limited extent that it may amount to sufficient
cause for condoning delay within the period of 18 months.
23. Close upon the heels of this judgment comes another
3-Judge Bench decision under the same provision of the U.P.
Sales Tax Act. In this judgment, another 3-Judge Bench in
C.S.T. v. Madan Lal Das and Sons, 1976 (4) SCC 464, without
adverting to either Parson Tools or the three other judgments
mentioned hereinabove went on to apply Section 12 (2) of the
26Page 27
Limitation Act to proceedings under the U.P. Sales Tax Act.
None of the aforesaid four decisions were pointed out to the
court and it was not argued that the Limitation Act applies only
to courts and not to Sales Tax authorities who are quasi-judicial
Tribunals. This judgment, therefore, is not an authority for the
proposition that the Limitation Act would apply to Tribunals as
opposed to courts. Clearly the conclusion reached would be
contrary to four earlier decisions three of which are 3-Judge
Bench decisions.
24. In fact, even after this judgment, in Officer on Special
Duty (Land Acquisition) v. Shah Manilal Chandulal, (1996) 9
SCC 414, this Court held that a Land Acquisition Officer under
the Land Acquisition Act not being a court, the provisions of the
Limitation Act would not apply. The court concluded, after
adverting to some of the previous judgments of this Court as
follows:-
“18. Though hard it may be, in view of the specific
limitation provided under proviso to Section 18(2) of
the Act, we are of the considered view that
sub-section (2) of Section 29 cannot be applied to
the proviso to sub-section (2) of Section 18. The
Collector/LAO, therefore, is not a court when he
acts as a statutory authority under Section 18(1).

Therefore, Section 5 of the Limitation Act cannot be
applied for extension of the period of limitation
prescribed under proviso to sub-section (2) of
Section 18. The High Court, therefore, was not right
in its finding that the Collector is a court under
Section 5 of the Limitation Act.
19. Accordingly, we hold that the applications are
barred by limitation and the Collector has no power
to extend time for making an application under
Section 18(1) for reference to the court.”
25. Two other judgments of this Court need to be dealt with at
this stage. In Mukri Gopalan v. Cheppilat Puthanpurayil
Aboobacker, (1995) 5 SCC 5, a 2-Judge Bench of this Court
held that the Limitation Act would apply to the appellate
authority constituted under Section 13 of the Kerala Buildings
(Lease and Rent Control) Act , 1965. This was done by
applying the provision of Section 29(2) of the Limitation Act.
Despite referring to various earlier judgments of this Court
which held that the Limitation Act applies only to courts and not
to Tribunals, this Court in this case held to the contrary. In
distinguishing the Parson Tools’ case, which is a 3-Judge
Bench binding on the Court that decided Mukri Gopalan’s case,
the Court held:-

“If the Limitation Act does not apply then neither
Section 29(2) nor Section 14(2) of the Limitation Act
would apply to proceedings before him. But so far
as this Court is concerned it did not go into the
question whether Section 29(2) would not get
attracted because the U.P. Sales Tax Act Judge
(Revisions) was not a court but it took the view that
because of the express provision in Section 10(3)
(B) applicability of Section 14(2) of the Sales Tax
Act was ruled out. Implicit in this reasoning is the
assumption that but for such an express conflict or
contrary intention emanating from Section 10(3)(B)
of the U.P. Sales Tax Act which was a special law,
Section 29(2) would have brought in Section 14(2)
of the Limitation Act even for governing period of
limitation for such revision applications. In any case,
the scope of Section 29(2) was not considered by
the aforesaid decision of the three learned Judges
and consequently it cannot be held to be an
authority for the proposition that in revisional
proceedings before the Sales Tax authorities
functioning under the U.P. Sales Tax Act Section
29(2) cannot apply as Mr. Nariman would like to
have it.”
It then went on to follow the judgment reported in The
Commissioner of Sales Tax, U.P. v. M/s. Madan Lal Das &
Sons, Bareilly, (1976) 4 SCC 464 which, as has been pointed
out earlier, is not an authority for the proposition that the
Limitation Act would apply to Tribunals. In fact, Mukri
Gopalan’s case was distinguished in Om Prakash v. Ashwani
Kumar Bassi, (2010) 9 SCC 183 at paragraph 22 as follows:
29Page 30
“22. The decision in Mukri Gopalan case [(1995) 5
SCC 5] relied upon by Mr Ujjal Singh is
distinguishable from the facts of this case. In the
facts of the said case, it was the District Judges who
were discharging the functions of the appellate
authority and being a court, it was held that the
District Judge, functioning as the appellate authority,
was a court and not persona designata and was,
therefore, entitled to resort to Section 5 of the
Limitation Act. That is not so in the instant case
where the Rent Controller appointed by the State
Government is a member of the Punjab Civil
Services and, therefore, a persona designata who
would not be entitled to apply the provisions of
Section 5 of the Limitation Act, 1963, as in the other
case.”
The fact that the District Judge himself also happened to
be the appellate authority under the Rent Act would have been
sufficient on the facts of the case for the Limitation Act to apply
without going into the proposition that the Limitation Act would
apply to tribunals.
26. Quite apart from Mukri Gopalan’s case being out of step
with at least five earlier binding judgments of this Court, it does
not square also with the subsequent judgment in Consolidated
Engg. Enterprises v. Principal secy., Irrigation Deptt., (2008)
7 SCC 169. A 3-Judge Bench of this Court was asked to
decide whether Section 14 of the Limitation Act would apply to

Section 34(3) of the Arbitration and Conciliation Act, 1996. After
discussing the various provisions of the Arbitration Act and the
Limitation Act, this Court held:
“23. At this stage it would be relevant to ascertain
whether there is any express provision in the Act of
1996, which excludes the applicability of Section 14
of the Limitation Act. On review of the provisions of
the Act of 1996 this Court finds that there is no
provision in the said Act which excludes the
applicability of the provisions of Section 14 of the
Limitation Act to an application submitted under
Section 34 of the said Act. On the contrary, this
Court finds that Section 43 makes the provisions of
the Limitation Act, 1963 applicable to arbitration
proceedings. The proceedings under Section 34 are
for the purpose of challenging the award whereas
the proceeding referred to under Section 43 are the
original proceedings which can be equated with a
suit in a court. Hence, Section 43 incorporating the
Limitation Act will apply to the proceedings in the
arbitration as it applies to the proceedings of a suit
in the court. Sub-section (4) of Section 43, inter alia,
provides that where the court orders that an arbitral
award be set aside, the period between the
commencement of the arbitration and the date of
the order of the court shall be excluded in
computing the time prescribed by the Limitation Act,
1963, for the commencement of the proceedings
with respect to the dispute so submitted. If the
period between the commencement of the
arbitration proceedings till the award is set aside by
the court, has to be excluded in computing the
period of limitation provided for any proceedings
with respect to the dispute, there is no good reason
as to why it should not be held that the provisions of
Section 14 of the Limitation Act would be applicable
31Page 32
to an application submitted under Section 34 of the
Act of 1996, more particularly where no provision is
to be found in the Act of 1996, which excludes the
applicability of Section 14 of the Limitation Act, to an
application made under Section 34 of the Act. It is to
be noticed that the powers under Section 34 of the
Act can be exercised by the court only if the
aggrieved party makes an application. The
jurisdiction under Section 34 of the Act, cannot be
exercised suo motu. The total period of four months
within which an application, for setting aside an
arbitral award, has to be made is not unusually long.
Section 34 of the Act of 1996 would be unduly
oppressive, if it is held that the provisions of Section
14 of the Limitation Act are not applicable to it,
because cases are no doubt conceivable where an
aggrieved party, despite exercise of due diligence
and good faith, is unable to make an application
within a period of four months. From the scheme
and language of Section 34 of the Act of 1996, the
intention of the legislature to exclude the
applicability of Section 14 of the Limitation Act is not
manifest. It is well to remember that Section 14 of
the Limitation Act does not provide for a fresh period
of limitation but only provides for the exclusion of a
certain period. Having regard to the legislative
intent, it will have to be held that the provisions of
Section 14 of the Limitation Act, 1963 would be
applicable to an application submitted under Section
34 of the Act of 1996 for setting aside an arbitral
award.”
While discussing Parson Tools, this Court held:
“25……In appeal, this Court held that (1) if the
legislature in a special statute prescribes a certain
period of limitation, then the Tribunal concerned has
no jurisdiction to treat within limitation, an
application, by excluding the time spent in
prosecuting in good faith, on the analogy of Section
32Page 33
14(2) of the Limitation Act, and (2) the appellate
authority and the revisional authority were not
“courts” but were merely administrative tribunals
and, therefore, Section 14 of the Limitation Act did
not, in terms, apply to the proceedings before such
tribunals.
26. From the judgment of the Supreme Court
 in CST [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 :
(1975) 3 SCR 743] it is evident that essentially what
weighed with the Court in holding that Section 14 of
the Limitation Act was not applicable, was that the
appellate authority and the revisional authority were
not “courts”. The stark features of the revisional
powers pointed out by the Court, showed that the
legislature had deliberately excluded the application
of the principles underlying Sections 5 and 14 of the
Limitation Act. Here in this case, the Court is not
called upon to examine scope of revisional powers.
The Court in this case is dealing with Section 34 of
the Act which confers powers on the court of the
first instance to set aside an award rendered by an
arbitrator on specified grounds. It is not the case of
the contractor that the forums before which the
Government of India undertaking had initiated
proceedings for setting aside the arbitral award are
not “courts”. In view of these glaring distinguishing
features, this Court is of the opinion that the
decision rendered in CST [(1975) 4 SCC 22 : 1975
SCC (Tax) 185 : (1975) 3 SCR 743] did not decide
the issue which falls for consideration of this Court
and, therefore, the said decision cannot be
construed to mean that the provisions of Section 14
of the Limitation Act are not applicable to an
application submitted under Section 34 of the Act of
1996.”
In a separate concurring judgment Justice Raveendran
specifically held:
33Page 34
“44. It may be noticed at this juncture that the
Schedule to the Limitation Act prescribes the period
of limitation only to proceedings in courts and not to
any proceeding before a tribunal or quasi-judicial
authority. Consequently Sections 3 and 29(2) of the
Limitation Act will not apply to proceedings before
the tribunal. This means that the Limitation Act will
not apply to appeals or applications before the
tribunals, unless expressly provided.
While dealing with Parson Tools, the learned Judge held:
“56. In Parson Tools [(1975) 4 SCC 22] this Court
did not hold that Section 14(2) was excluded by
reason of the wording of Section 10(3-B) of the
Sales Tax Act. This Court was considering an
appeal against the Full Bench decision of the
Allahabad High Court. Two Judges of the High
Court had held that the time spent in prosecuting
the application for setting aside the order of
dismissal of appeals in default, could be excluded
when computing the period of limitation for filing a
revision under Section 10 of the said Act, by
application of the principle underlying Section 14(2)
of the Limitation Act. The minority view of the third
Judge was that the revisional authority under
Section 10 of the U.P. Sales Tax Act did not act as a
court but only as a Revenue Tribunal and therefore
the Limitation Act did not apply to the proceedings
before such Tribunal, and consequently, neither
Section 29(2) nor Section 14(2) of the Limitation Act
applied. The decision of the Full Bench was
challenged by the Commissioner of Sales Tax
before this Court, contending that the Limitation Act
did not apply to tribunals, and Section 14(2) of the
Limitation Act was excluded in principle or by
analogy. This Court upheld the view that the
Limitation Act did not apply to tribunals, and that as
the revisional authority under Section 10 of the U.P.
Sales Tax Act was a tribunal and not a court, the
34Page 35
Limitation Act was inapplicable. This Court further
held that the period of pendency of proceedings
before the wrong forum could not be excluded while
computing the period of limitation by applying
Section 14(2) of the Limitation Act. This Court,
however, held that by applying the principle
underlying Section 14(2), the period of pendency
before the wrong forum may be considered as a
“sufficient cause” for condoning the delay, but then
having regard to Section 10(3-B), the extension on
that ground could not extend beyond six months.
The observation that pendency of proceedings of
the nature contemplated by Section 14(2) of the
Limitation Act, may amount to a sufficient cause for
condoning the delay and extending the limitation
and such extension cannot be for a period in
excess of the ceiling period prescribed, is in the light
of its finding that Section 14(2) of the Limitation Act
was inapplicable to revisions under Section 10(3-B)
of the U.P. Sales Tax Act. These observations
cannot be interpreted as laying down a proposition
that even where Section 14(2) of the Limitation Act
in terms applied and the period spent before wrong
forum could therefore be excluded while computing
the period of limitation, the pendency before the
wrong forum should be considered only as a
sufficient cause for extension of period of limitation
and therefore, subjected to the ceiling relating to the
extension of the period of limitation. As we are
concerned with a proceeding before a court to
which Section 14(2) of the Limitation Act applies,
the decision in Parson Tools [(1975) 4 SCC 22 :
1975 SCC (Tax) 185 : (1975) 3 SCR 743] which
related to a proceeding before a Tribunal to which
Section 14(2) of the Limitation Act did not apply, has
no application.”
35Page 36
27. Obviously, the ratio of Mukri Gopalan does not square
with the observations of the 3-Judge Bench in Consolidated
Engineering Enterprises. In the latter case, this Court has
unequivocally held that Parson Tools is an authority for the
proposition that the Limitation Act will not apply to quasi-judicial
bodies or Tribunals. To the extent that Mukri Gopalan is in
conflict with the judgment in the Consolidated Engineering
Enterprises case, it is no longer good law.
28. The sheet anchor in Mukri Gopalan was Section 29(2) of
the Limitation Act. Section 29(2) states:-
“29. Savings.—
(2) Where any special or local law prescribes for
any suit, appeal or application a period of limitation
different from the period prescribed by the
Schedule, the provisions of Section 3 shall apply as
if such period were the period prescribed by the
Schedule and for the purpose of determining any
period of limitation prescribed for any suit, appeal or
application by any special or local law, the
provisions contained in Sections 4 to 24 (inclusive)
shall apply only insofar as, and to the extent to
which, they are not expressly excluded by such
special or local law.”
36Page 37
A bare reading of this Section would show that the special or
local law described therein should prescribe for any suit, appeal
or application a period of limitation different from the period
prescribed by the schedule. This would necessarily mean that
such special or local law would have to lay down that the suit,
appeal or application to be instituted under it should be a suit,
appeal or application of the nature described in the schedule.
We have already held that such suits, appeals or applications
as are referred to in the schedule are only to courts and not to
quasi-judicial bodies or Tribunals. It is clear, therefore, that only
when a suit, appeal or application of the description in the
schedule is to be filed in a court under a special or local law
that the provision gets attracted. This is made even clearer by
a reading of Section 29(3). Section 29(3) states:-
“29. Savings.—
(3) Save as otherwise provided in any law for the
time being in force with respect to marriage and
divorce, nothing in this Act shall apply to any suit or
other proceeding under any such law.”
29. When it comes to the law of marriage and divorce, the
Section speaks not only of suits but other proceedings as well.
37Page 38
Such proceedings may be proceedings which are neither
appeals nor applications thus making it clear that the laws
relating to marriage and divorce, unlike the law of limitation,
may contain proceedings other than suits, appeals or
applications filed in courts. This again is an important pointer to
the fact that the entirety of the Limitation Act including Section
29(2) would apply only to the three kinds of proceedings
mentioned all of which are to be filed in courts.
30. It now remains to consider the decision of a 2-Judge
Bench reported in P. Sarathy v. State Bank of India, (2000) 5
SCC 355. This judgment has held that an abortive proceeding
before the appellate authority under Section 41 of the Tamil
Nadu Shops and Establishment Act would attract the provisions
of Section 14 of the Limitation Act inasmuch as the appellant in
this case had been prosecuting with due diligence another civil
proceeding before the appellate authority under the Tamil Nadu
Shops and Establishment Act, which appeal was dismissed on
the ground that the said Act was not applicable to nationalized
banks and that, therefore, such appeal would not be
maintainable. This Court made a distinction between “Civil
38Page 39
Court” and “court’ and expanded the scope of Section 14
stating that any authority or Tribunal having the trappings of a
Court would be a “court” within the meaning of Section 14. It
must be remembered that the word “Court” refers only to a
proceeding which proves to be abortive. In this context, for
Section 14 to apply, two conditions have to be met. First, the
primary proceeding must be a suit, appeal or application filed in
a Civil Court. Second, it is only when it comes to excluding
time in an abortive proceeding that the word “Court” has been
expanded to include proceedings before tribunals.
31. This judgment is in line with a large number of authorities
which have held that Section 14 should be liberally construed to
advance the cause of justice – see: Shakti Tubes Ltd. v. State
of Bihar, (2009) 1 SCC 786 and the judgments cited therein.
Obviously, the context of Section 14 would require that the term
“court” be liberally construed to include within it quasi-judicial
Tribunals as well. This is for the very good reason that the
principle of Section 14 is that whenever a person bonafide
prosecutes with due diligence another proceeding which proves
39Page 40
to be abortive because it is without jurisdiction, or otherwise no
decision could be rendered on merits, the time taken in such
proceeding ought to be excluded as otherwise the person who
has approached the Court in such proceeding would be
penalized for no fault of his own. This judgment does not further
the case of Shri Viswanathan in any way. The question that
has to be answered in this case is whether suits, appeals or
applications referred to by the Limitation Act are to be filed in
courts. This has nothing to do with “civil proceedings” referred
to in Section 14 which may be filed before other courts or
authorities which ultimately do not answer the case before them
on merits but throw the case out on some technical ground.
Obviously the word “court” in Section 14 takes its colour from
the preceding words “civil proceedings”. Civil proceedings are
of many kinds and need not be confined to suits, appeals or
applications which are made only in courts stricto sensu. This is
made even more clear by the explicit language of Section 14 by
which a civil proceeding can even be a revision which may be
to a quasi-judicial tribunal under a particular statute.
40Page 41
Whether the Principle of Section 14 would apply to an
appeal filed under Section 128 Customs Act.
“128. Appeals to Commissioner (Appeals).—(1)
Any person aggrieved by any decision or order
passed under this Act by an officer of customs lower
in rank than a Commissioner of Customs may
appeal to the Commissioner (Appeals) within [sixty
days] from the date of the communication to him of
such decision or order:
[Provided that the Commissioner (Appeals) may, if
he is satisfied that the appellant was prevented by
sufficient cause from presenting the appeal within
the aforesaid period of sixty days, allow it to be
presented within a further period of thirty days.]
[(1-A) The Commissioner (Appeals) may, if sufficient
cause is shown, at any stage of hearing of an
appeal, grant time, from time to time, to the parties
or any of them and adjourn the hearing of the
appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted
more than three times to a party during hearing of
the appeal.]
(2) Every appeal under this section shall be in such
form and shall be verified in such manner as may be
specified by rules made in this behalf.”
Prior to its amendment in 2001, the said Section read as
under:-
“128. Appeals to Collector (Appeals).—(1) Any
person aggrieved by any decision or order passed
under this Act by an officer of customs lower in rank
than a Collector of Customs may appeal to the
Collector (Appeals) within three months from the
41Page 42
date of the communication to him of such decision
or order:
Provided that the Collector (Appeals) may, if he is
satisfied that the appellant was prevented by
sufficient cause from presenting the appeal within
the aforesaid period of three months, allow it to be
presented within a further period of three months.
(2) Every appeal under this section shall be in such
form and shall be verified in such manner as may
be specified by rules made in this behalf.”
We have already held that the Limitation Act including Section
14 would not apply to appeals filed before a quasi-judicial
Tribunal such as the Collector (Appeals) mentioned in Section
128 of the Customs Act. However, this does not conclude the
issue. There is authority for the proposition that even where
Section 14 may not apply, the principles on which Section 14 is
based, being principles which advance the cause of justice,
would nevertheless apply. We must never forget, as stated in
Bhudan Singh & Anr. v. Nabi Bux & Anr., (1970) 2 SCR 10,
that justice and reason is at the heart of all legislation by
Parliament. This was put in very felicitous terms by Hegde,J.
as follows:
“Before considering the meaning of the word "held"
in Section 9, it is necessary to mention that it is
42Page 43
proper to assume that the lawmakers who are the
representatives of the people enact laws which the
society considers as honest, fair and equitable. The
object of every legislation is to advance public
welfare. In other words as observed by Crawford in
his book on Statutory Constructions the entire
legislative process is influenced by considerations
of justice and reason. Justice and reason constitute
the great general legislative intent in every piece of
legislation. Consequently where the suggested
construction operates harshly, ridiculously or in any
other manner contrary to prevailing conceptions of
justice and reason, in most instances, it would seem
that the apparent or suggested meaning of the
statute, was not the one intended by the
law-makers. In the absence of some other indication
that the harsh or ridiculous effect was actually
intended by the legislature, there is little reason to
believe that it represents the legislative intent.”
32. This is why the principles of Section 14 were applied in J.
Kumaradasan Nair v. Iric Sohan, (2009) 12 SCC 175 to a
revision application filed before the High Court of Kerala. The
Court held:
“16. The provisions contained in Sections 5 and 14
of the Limitation Act are meant for grant of relief
where a person has committed some mistake. The
provisions of Sections 5 and 14 of the Limitation Act
alike should, thus, be applied in a broad based
manner. When sub-section (2) of Section 14 of the
Limitation Act per se is not applicable, the same
would not mean that the principles akin thereto
would not be applied. Otherwise, the provisions of
Section 5 of the Limitation Act would apply. There
43Page 44
cannot be any doubt whatsoever that the same
would be applicable to a case of this nature.
17. There cannot furthermore be any doubt
whatsoever that having regard to the definition of
“suit” as contained in Section 2(l) of the Limitation
Act, a revision application will not answer the said
description. But, although the provisions of Section
14 of the Limitation Act per se are not applicable, in
our opinion, the principles thereof would be
applicable for the purpose of condonation of delay
in filing an appeal or a revision application in terms
of Section 5 thereof.
18. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning
of any provision of law would, by itself, be not
sufficient to take away the jurisdiction of a court if it
is otherwise vested in it in law. While exercising its
power, the court will merely consider whether it has
the source to exercise such power or not. The court
will not apply the beneficent provisions like Sections
5 and 14 of the Limitation Act in a pedantic manner.
When the provisions are meant to apply and in fact
found to be applicable to the facts and
circumstances of a case, in our opinion, there is no
reason as to why the court will refuse to apply the
same only because a wrong provision has been
mentioned. In a case of this nature, sub-section (2)
of Section 14 of the Limitation Act per se may not be
applicable, but, as indicated hereinbefore, the
principles thereof would be applicable for the
purpose of condonation of delay in terms of Section
5 thereof.”
The Court further quoted from Consolidated Engineering
Enterprises an instructive passage:
44Page 45
“21. In Consolidated Engg. Enterprises v. Irrigation
Deptt. [(2008) 7 SCC 169] this Court held: (SCC p.
181, para 22)
“22. The policy of the section is to afford protection
to a litigant against the bar of limitation when he
institutes a proceeding which by reason of some
technical defect cannot be decided on merits and is
dismissed. While considering the provisions of
Section 14 of the Limitation Act, proper approach
will have to be adopted and the provisions will have
to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be
well to bear in mind that an element of mistake is
inherent in the invocation of Section 14. In fact, the
section is intended to provide relief against the bar
of limitation in cases of mistaken remedy or
selection of a wrong forum. On reading Section 14
of the Act it becomes clear that the legislature has
enacted the said section to exempt a certain period
covered by a bona fide litigious activity. Upon the
words used in the section, it is not possible to
sustain the interpretation that the principle
underlying the said section, namely, that the bar of
limitation should not affect a person honestly doing
his best to get his case tried on merits but failing
because the court is unable to give him such a trial,
would not be applicable to an application filed under
Section 34 of the Act of 1996. The principle is
clearly applicable not only to a case in which a
litigant brings his application in the court, that is, a
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 of 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,
45Page 46
should be excluded. See Shakti Tubes Ltd. v. State
of Bihar [(2009) 1 SCC 786].”
33. Various provisions of the Limitation Act are based on
advancing the cause of justice. Section 6 is one such. It reads
as follows:-
“6. Legal disability.—(1) Where a person entitled to institute a
suit or make an application for the execution of a decree is, at
the time from which the prescribed period is to be reckoned, a
minor or insane, or an idiot, he may institute the suit or make
the application within the same period after the disability has
ceased, as would otherwise have been allowed from the time
specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed
period is to be reckoned, affected by two such disabilities, or
where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the
application within the same period after both disabilities have
ceased, as would otherwise have been allowed from the time
so specified.
(3) Where the disability continues up to the death of that
person, his legal representative may institute the suit or make
the application within the same period after the death, as would
otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3)
is, at the date of the death of the person whom he represents,
affected by any such disability, the rules contained in
sub-sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability
ceases but within the period allowed to him under this section,
his legal representative may institute the suit or make the
46Page 47
application within the same period after the death, as would
otherwise have been available to that person had he not died.
Explanation.—For the purposes of this section, ‘minor’ includes
a child in the womb.”
On the assumption that Section 6 does not apply on the facts of
a given case, can it be said that the principles on which it is
based have no application? Suppose, in a given case, the
person entitled to institute a proceeding not governed by the
Limitation Act were a minor, a lunatic or an idiot, would he not
be entitled to institute such proceedings after such disability has
ceased, for otherwise he would be barred by the period of
limitation contained in the particular statute governing his rights.
This Section again is a pointer to the fact that courts always
lean in favour of advancing the cause of justice where a clear
case is made out for so doing.
34. However, it remains to consider whether Shri Sanghi is
right in stating that Section 128 is a complete code by itself
which necessarily excludes the application of Section 14 of the
Limitation Act. For this proposition he relied strongly on Parson
Tools which has been discussed hereinabove. As has already
47Page 48
been stated, Parson Tools was a judgment which turned on the
three features mentioned in the said case. Unlike the U.P.
Sales Tax Act, there is no provision in the Customs Act which
enables a party to invoke suo moto the appellate power and
grant relief to a person who institutes an appeal out of time in
an appropriate case. Also, Section 10 of the U.P. Sales Tax Act
dealt with the filing of a revision petition after a first appeal had
already been rejected, and not to a case of a first appeal as
provided under Section 128 of the Customs Act. Another
feature, which is of direct relevance in this case, is that for
revision petitions filed under the U.P. Sales Tax Act a sufficiently
long period of 18 months had been given beyond which it was
the policy of the legislature not to extend limitation any further.
This aspect of Parson Tools has been explained in
Consolidated Engineering in some detail by both the main
judgment as well as the concurring judgment. In the latter
judgment, it has been pointed out that there is a vital distinction
between extending time and condoning delay. Like Section 34
of the Arbitration Act, Section 128 of the Customs Act is a
Section which lays down that delay cannot be condoned
48Page 49
beyond a certain period. Like Section 34 of the Arbitration Act,
Section 128 of the Customs Act does not lay down a long
period. In these circumstances, to infer exclusion of Section 14
or the principles contained in Section 14 would be unduly harsh
and would not advance the cause of justice. It must not be
forgotten as is pointed out in the concurring judgment in
Consolidated Engineering that:
“Even when there is cause to apply Section 14, the
limitation period continues to be three months and
not more, but in computing the limitation period of
three months for the application under Section 34(1)
of the AC Act, the time during which the applicant
was prosecuting such application before the wrong
court is excluded, provided the proceeding in the
wrong court was prosecuted bona fide, with due
diligence. Western Builders [(2006) 6 SCC 239]
therefore lays down the correct legal position.”
35. Merely because Parson Tools also dealt with a provision
in a tax statute does not make the ratio of the said decision
apply to a completely differently worded tax statute with a much
shorter period of limitation – Section 128 of the Customs Act.
Also, the principle of Section 14 would apply not merely in
condoning delay within the outer period prescribed for
condonation but would apply de hors such period for the reason
49Page 50
pointed out in Consolidated Engineering above, being the
difference between exclusion of a certain period altogether
under Section 14 principles and condoning delay. As has been
pointed out in the said judgment, when a certain period is
excluded by applying the principles contained in Section 14,
there is no delay to be attributed to the appellant and the
limitation period provided by the concerned statute continues to
be the stated period and not more than the stated period. We
conclude, therefore, that the principle of Section 14 which is a
principle based on advancing the cause of justice would
certainly apply to exclude time taken in prosecuting
proceedings which are bona fide and with due diligence
pursued, which ultimately end without a decision on the merits
of the case.
36. Shri Sanghi also cited Ranbaxy Laboratories Ltd. v.
Union of India, (2011) 10 SCC 292. He relied upon paragraph
14 of this judgment which reads as follows:-
“14. It is a well-settled proposition of law that a
fiscal legislation has to be construed strictly and one
has to look merely at what is said in the relevant
provision; there is nothing to be read in; nothing to
be implied and there is no room for any intendment.
50Page 51
(See Cape Brandy Syndicate v. IRC [(1921) 1 KB
64] and Ajmera Housing Corpn. v.CIT [(2010) 8
SCC 739] .)”.
37. We do not see how this judgment furthers the argument of
Shri Sanghi. This is only reiteration of the classic statement of
law contained in the Cape Brandy Syndicate case. Further, the
context of this paragraph is that a literal meaning has to be
given to a charging Section in a tax statute. When it comes to
machinery provisions in tax statutes and provisions which
provide for appeals and the limitation period within which such
appeals have to be filed, it is clear that the aforesaid
observations would have no application whatsoever.
38. Shri Sanghi then referred us to Sree Balaji Nagar
Residential Assn. v. State of Tamil Nadu, (2015) 3 SCC 353
and read out paragraphs 10 and 11 from the said judgment.
What was held by this Court in that case was that Section 24(2)
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 does not
exclude any period during which a land acquisition proceeding
which might have remain stayed on account of an injunction
51Page 52
granted by any Court. This was so held by contrasting the
language of section 24(2) with the language of Section 19 and
Section 69 of the same Act. This judgment again would have
no direct bearing on the proposition canvassed by Shri Sanghi
that Section 128 of the Customs Act forms a complete code by
itself.
What periods are to be excluded under Section 14
39. Shri Viswanathan, learned senior counsel appearing for
the appellant, placed before us a judgment of the Andhra
Pradesh High Court in which it was held that even prior to the
institution of a particular proceeding, time taken in steps taken
for prosecuting such proceedings should also be excluded. In
Tirumareddi Rajarao & Ors. v. The State of Andhra Pradesh
& Ors., AIR 1965 A.P. 388, the Andhra Pradesh High Court held
that the period taken for preparatory steps before instituting
proceedings should also be excluded. It said:
“13. We may now turn to the Chambers Twentieth
Century Dictionary for the meanings of the
expression "to prosecute". It means:
To follow onwards or pursue in order to reach or
accomplish; to engage in practise to follow up to
52Page 53
pursue, chase, to pursue by law; to bring before a
Court.
14. These meanings do not vouch the construction
of the section advanced by the learned Government
Pleader. In our opinion, the section does not render
it essential that the prosecution of the proceedings
should be continued exclusively in the Court, i.e. the
actual proceeding in the Court. There is justification
for the view that it is only the actual period between
the presentation of a proceedings and the disposal
of that particular proceeding should be allowed
under the sub-section. The time during which a
party has been taking the indispensable and
necessary steps preparatory to initiate the
proceedings in a court should also be regarded as
the time during which he has been prosecuting the
civil proceeding.
It is also to be borne in mind that sub-section (1)
makes no reference to the pendency of the suit,
appeal or other proceeding in a Court of law. The
legislature had used words of general import and of
widest amplitude. So, we do not find any justification
for reading a restriction into that sub-section and to
hold that the time during which a party was engaged
in taking steps for invoking the aid of the Court falls
outside the contemplation urged on behalf of the
respondents, while the pendency of a proceeding in
a Court could be deducted in computing the period
of limitation, the time occupied in obtaining certified
copies of the judgment which is an essential
requisite for the filing of an appeal or revision in the
higher Court has to be disregarded for purposes of
S. 14. We do not think that the legislature would
have contemplated such a situation. It would
certainly result in an anomaly to hold that the time
covered by taking the steps absolutely necessary
for initiating proceedings in a Court should be
included in calculating the period of limitation while
53Page 54
the time during which a former suit or application
was pending in a Court should be excluded. In our
considered judgment the section does not make any
distinction between the steps which a litigant has to
take to initiate proceedings in a Court and the actual
pendency of those proceedings in the Court.”
40. In Mst. Duliyabai & Ors. v. Vilayatali & Ors., AIR 1959
MP 271, a Division Bench of the High Court held:-
“What would be the time during which the plaintiff
has been prosecuting with due diligence another
civil proceeding in a Court of appeal? Certainly the
time requisite for obtaining the certified copies
under Section 12 of the Limitation Act would be
included within the meaning of the section. Also the
limitation prescribed for the filing of an appeal would
be included, if the appeal be filed on the last day of
limitation.
But if the appeal be filed earlier, the time from the
date of the order impugned upto the actual date of
filing of the appeal would certainly be the time
during which the plaintiff can be said to be
prosecuting another civil proceeding in a court of
appeal. We are unable to endorse the view of the
learned trial Judge on this point. A Division Bench of
this Court consisting of Sir Gilbert Stone, C. J. and
Niyogi, J., in the case of Kasturchand v. Wazir
Begum' : (AIR 1937 Nag 1) : ILR (1937) Nag 291,
held with reference to Article 11 (1) of the Limitation
Act as follows:
"Then it is said that the plaintiff is out of time owing
to the operation of Article 11 (1) of the Limitation Act
which, in the case of a suit by a person against
whom an order is passed on his objection in
execution proceedings, fixes one year. The dates
54Page 55
are as follows: the objection order was passed on
5-3-1928. The plaint was presented in one Court on
15-9-1928, of course in time. That was returned by
that Court on 14-12-1928, for presentation to what
that Court held to be the proper Court. The plaintiff
challenging the correctness of that order appealed
on 6-2-1929 and the appeal was dismissed on
2-9-1929, and the plaint was presented to the Court
as decided by die first Court, on 25-11-1929. In our
opinion the plaintiff has been litigating the matter in
a Court which she bona fide believed to be the
correct tribunal, believing, to the extent of incurring
costs of an appeal against the decision that it was
not the correct tribunal, for something like 10
months.
Those 10 months must be taken into account in
considering the period that has elapsed between
the date of suit and the date when the plaint was
eventually filed in the correct Court, and if this is so
taken into account the time that has expired is less
than a year. The limitation point, therefore, in our
opinion, fails."
In the case of Abdul Sattar v. Abdul Husan, AIR
1936 Cal 400, the plaintiffs had applied for
execution of their decree. The judgment-debtors
raised objections to the execution on the ground of
adjustment of the decree. The question of
adjustment was fought in appeals upto the highest
Court. Ultimately it was decided against the plaintiffs
by the final appellate Court. The learned Judges
constituting the Division Bench held that the
plaintiffs were entitled to exclude the entire period
from the date of the order recording the adjustment
upto the date of the final order of the highest
appellate Court. We feel that this interpretation of
Section 14 is in consonance with the wording of the
Section. Therefore, differing from the learned trial
Judge, we hold that the appellants were entitled to
exclude the period from 18-9-1948 to 15-12-1948.”
55Page 56
41. The language of Section 14, construed in the light of the
object for which the provision has been made, lends itself to
such an interpretation. The object of Section 14 is that if its
conditions are otherwise met, the plaintiff/applicant should be
put in the same position as he was when he started an abortive
proceeding. What is necessary is the absence of negligence or
inaction. So long as the plaintiff or applicant is bonafide
pursuing a legal remedy which turns out to be abortive, the time
beginning from the date of the cause of action of an appellate
proceeding is to be excluded if such appellate proceeding is
from an order in an original proceeding instituted without
jurisdiction or which has not resulted in an order on the merits
of the case. If this were not so, anomalous results would follow.
Take the case of a plaintiff or applicant who has succeeded at
the first stage of what turns out to be an abortive proceeding.
Assume that, on a given state of facts, a defendant – appellant
or other appellant takes six months more than the prescribed
period for filing an appeal. The delay in filing the appeal is
condoned. Under explanation (b) of Section 14, the plaintiff or
56Page 57
the applicant resisting such an appeal shall be deemed to be
prosecuting a proceeding. If the six month period together with
the original period for filing the appeal is not to be excluded
under Section 14, the plaintiff/applicant would not get a hearing
on merits for no fault of his, as he in the example given is not
the appellant. Clearly therefore, in such a case, the entire
period of nine months ought to be excluded. If this is so for an
appellate proceeding, it ought to be so for an original
proceeding as well with this difference that the time already
taken to file the original proceeding, i.e. the time prior to
institution of the original proceeding cannot be excluded. Take
a case where the limitation period for the original proceeding is
six months. The plaintiff/applicant files such a proceeding on
the ninetieth day i.e. after three months are over. The said
proceeding turns out to be abortive after it has gone through a
chequered career in the appeal courts. The same
plaintiff/applicant now files a fresh proceeding before a court of
first instance having the necessary jurisdiction. So long as the
said proceeding is filed within the remaining three month
period, Section 14 will apply to exclude the entire time taken
57Page 58
starting from the ninety first day till the final appeal is ultimately
dismissed. This example also goes to show that the expression
“the time during which the plaintiff has been prosecuting with
due diligence another civil proceeding” needs to be construed
in a manner which advances the object sought to be achieved,
thereby advancing the cause of justice.
42. Section 14 has been interpreted by this Court extremely
liberally inasmuch as it is a provision which furthers the cause
of justice. Thus, in Union of India v. West Coast Paper Mills
Ltd., (2004) 3 SCC 458, this Court held:
“14. … In the submission of the learned Senior
Counsel, filing of civil writ petition claiming money
relief cannot be said to be a proceeding instituted in
good faith and secondly, dismissal of writ petition on
the ground that it was not an appropriate remedy for
seeking money relief cannot be said to be ‘defect of
jurisdiction or other cause of a like nature’ within the
meaning of Section 14 of the Limitation Act. It is true
that the writ petition was not dismissed by the High
Court on the ground of defect of jurisdiction.
However, Section 14 of the Limitation Act is wide in
its application, inasmuch as it is not confined in its
applicability only to cases of defect of jurisdiction
but it is applicable also to cases where the prior
proceedings have failed on account of other causes
of like nature. The expression ‘other cause of like
nature’ came up for the consideration of this Court
in Roshanlal Kuthalia v. R.B. Mohan Singh
Oberoi[(1975) 4 SCC 628] and it was held that
58Page 59
Section 14 of the Limitation Act is wide enough to
cover such cases where the defects are not merely
jurisdictional strictly so called but others more or
less neighbours to such deficiencies. Any
circumstance, legal or factual, which inhibits
entertainment or consideration by the court of the
dispute on the merits comes within the scope of the
section and a liberal touch must inform the
interpretation of the Limitation Act which deprives
the remedy of one who has a right.”
Similarly, in India Electric Works Ltd. v. James
Mantosh, (1971) 1 SCC 24, this Court held:
“7. It is well settled that although all questions of
limitation must be decided by the provisions of the
Act and the courts cannot travel beyond them the
words ‘or other cause of a like nature’ must be
construed liberally. Some clue is furnished with
regard to the intention of the legislature by
Explanation III in Section 14(2). Before the
enactment of the Act in 1908, there was a conflict
amongst the High Courts on the question whether
misjoinder and non-joinder were defects which were
covered by the words ‘or other cause of a like
nature’. It was to set at rest this conflict that
Explanation III was added. An extended meaning
was thus given to these words. Strictly speaking
misjoinder or non-joinder of parties could hardly be
regarded as a defect of jurisdiction or something
similar or analogous to it.”
43. As has been already noticed, Sarathy’s case i.e. (2000) 5
SCC 355 has also held that the court referred to in Section 14
would include a quasi-judicial tribunal. There appears to be no
59Page 60
reason for limiting the reach of the expression “prosecuting with
due diligence” to institution of a proceeding alone and not to the
date on which the cause of action for such proceeding might
arise in the case of appellate or revisional proceedings from
original proceedings which prove to be abortive. Explanation
(a) to Section 14 was only meant to clarify that the day on
which a proceeding is instituted and the day on which it ends
are also to be counted for the purposes of Section 14. This
does not lead to the conclusion that the period from the cause
of action to the institution of such proceeding should be left out.
In fact, as has been noticed above, the explanation expands
the scope of Section 14 by liberalizing it. Thus, under
explanation (b) a person resisting an appeal is also deemed to
be prosecuting a proceeding. But for explanation (b), on a literal
reading of Section 14, if a person has won in the first round of
litigation and an appeal is filed by his opponent, the period of
such appeal would not be liable to be excluded under the
Section, leading to an absurd result. That is why a plaintiff or
an applicant resisting an appeal filed by a defendant shall also
be deemed to prosecute a proceeding so that the time taken in
60Page 61
the appeal can also be the subject matter of exclusion under
Section 14. Equally, explanation (c) which deems misjoinder of
parties or a cause of action to be a cause of a like nature with
defect of jurisdiction, expands the scope of the section. We
have already noticed that the India Electric Works Ltd. judgment
has held that strictly speaking misjoinder of parties or of causes
of action can hardly be regarded as a defect of jurisdiction or
something similar to it. Therefore properly construed,
explanation (a) also confers a benefit and does not by a side
wind seek to take away any other benefit that a purposive
reading of Section 14 might give. We, therefore, agree with the
decision of the Madhya Pradesh High Court that the period
from the cause of action till the institution of appellate or
revisional proceedings from original proceedings which prove to
be abortive are also liable to exclusion under the Section. The
view of the Andhra Pradesh High Court is too broadly stated.
The period prior to institution of the initiation of any abortive
proceeding cannot be excluded for the simple reason that
Section 14 does not enable a litigant to get a benefit beyond
what is contemplated by the Section - that is to put the litigant in
61Page 62
the same position as if the abortive proceeding had never taken
place.
What applies to the facts of this case: the limitation period
in Section 128 pre-amendment or post amendment
44. Shri A.K. Sanghi, learned senior counsel appearing on
behalf of the revenue, has strongly contended before us that
the present appeal must attract the limitation period as on the
date of its filing. That being so, it is clear that the present
appeal having been filed before CESTAT only on 23.5.2003, it
is Section 128 post amendment that would apply and therefore
the maximum period available to the appellant would be 60 plus
30 days. Even if time taken in the abortive proceedings is to be
excluded, the appeal filed will be out of time being beyond the
aforesaid period.
45. It is settled law that periods of limitation are procedural in
nature and would ordinarily be applied retrospectively. This,
however, is subject to a rider. In New India Insurance Co. Ltd.
v. Shanti Misra, (1975) 2 SCC 840, this Court held:
62Page 63
“5. On the plain language of Sections 110-A and
110-F there should be no difficulty in taking the view
that the change in law was merely a change of
forum i.e. a change of adjectival or procedural law
and not of substantive law. It is a well-established
proposition that such a change of law operates
retrospectively and the person has to go to the new
forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a
vested right of action but not a vested right of forum.
If by express words the new forum is made
available only to causes of action arising after the
creation of the forum, then the retrospective
operation of the law is taken away. Otherwise the
general rule is to make it retrospective.”
46. In answering a question which arose under Section 110A
of the Motor Vehicles Act, this Court held:
“7.....“(1) Time for the purpose of filing the
application under Section 110-A did not start
running before the constitution of the tribunal. Time
had started running for the filing of the suit but
before it had expired the forum was changed. And
for the purpose of the changed forum, time could
not be deemed to have started running before a
remedy of going to the new forum is made
available.
(2) Even though by and large the law of limitation
has been held to be a procedural law, there are
exceptions to this principle. Generally the law of
limitation which is in vogue on the date of the
commencement of the action governs it. But there
are certain exceptions to this principle. The new law
of limitation providing a longer period cannot revive
a dead remedy. Nor can it suddenly extinguish a
63Page 64
vested right of action by providing for a shorter
period of limitation.”
47. This statement of the law was referred to with approval in
Vinod Gurudas Raikar v. National Insurance Co. Ltd., (1991)
4 SCC 333 as follows:-
“7. It is true that the appellant earlier could file an
application even more than six months after the
expiry of the period of limitation, but can this be
treated to be a right which the appellant had
acquired. The answer is in the negative. The claim
to compensation which the appellant was entitled to,
by reason of the accident was certainly enforceable
as a right. So far the period of limitation for
commencing a legal proceeding is concerned, it is
adjectival in nature, and has to be governed by the
new Act — subject to two conditions. If under the
repealing Act the remedy suddenly stands barred as
a result of a shorter period of limitation, the same
cannot be held to govern the case, otherwise the
result will be to deprive the suitor of an accrued
right. The second exception is where the new
enactment leaves the claimant with such a short
period for commencing the legal proceeding so as
to make it unpractical for him to avail of the remedy.
This principle has been followed by this Court in
many cases and by way of illustration we would like
to mention New India Insurance Co. Ltd. v.Smt
Shanti Misra [(1975) 2 SCC 840 : (1976) 2 SCR
266] . The husband of the respondent in that case
died in an accident in 1966. A period of two years
was available to the respondent for instituting a suit
for recovery of damages. In March, 1967 the Claims
Tribunal under Section 110 of the Motor Vehicles
Act, 1939 was constituted, barring the jurisdiction of
64Page 65
the civil court and prescribed 60 days as the period
of limitation. The respondent filed the application in
July, 1967. It was held that not having filed a suit
before March, 1967 the only remedy of the
respondent was by way of an application before the
Tribunal. So far the period of limitation was
concerned, it was observed that a new law of
limitation providing for a shorter period cannot
certainly extinguish a vested right of action. In view
of the change of the law it was held that the
application could be filed within a reasonable time
after the constitution of the Tribunal; and, that the
time of about four months taken by the respondent
in approaching the Tribunal after its constitution,
could be held to be either reasonable time or the
delay of about two months could be condoned
under the proviso to Section 110-A(3).”
Both these judgments were referred to and followed in
Union of India v. Harnam Singh, (1993) 2 SCC 162, see
paragraph 12.
48. The aforesaid principle is also contained in Section 30(a)
of the Limitation Act, 1963.
“30. Provision for suits, etc., for which the
prescribed period is shorter than the period
prescribed by the Indian Limitation Act, 1908.—
Notwithstanding anything contained in this Act,—
(a) any suit for which the period of limitation is
shorter than the period of limitation prescribed by
the Indian Limitation Act, 1908, may be instituted
within a period of [seven years] next after the
commencement of this Act or within the period
65Page 66
prescribed for such suit by the Indian Limitation Act,
1908, whichever period expires earlier:”
49. The reason for the said principle is not far to seek.
Though periods of limitation, being procedural law, are to be
applied retrospectively, yet if a shorter period of limitation is
provided by a later amendment to a statute, such period would
render the vested right of action contained in the statute
nugatory as such right of action would now become time barred
under the amended provision.
50. This aspect of the matter is brought out rather well in
Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC
739 as follows:
“22. Law is well settled that the manner in which the
appeal has to be filed, its form and the period within
which the same has to be filed are matters of
procedure, while the right conferred on a party to file
an appeal is a substantive right. The question is,
while dealing with a belated appeal under Section
19(2) of FEMA, the application for condonation of
delay has to be dealt with under the first proviso to
sub-section (2) of Section 52 of FERA or under the
proviso to sub-section (2) of Section 19 of FEMA.
For answering that question it is necessary to
examine the law on the point.
Substantive and procedural law
66Page 67
23. Substantive law refers to a body of rules that
creates, defines and regulates rights and liabilities.
Right conferred on a party to prefer an appeal
against an order is a substantive right conferred by
a statute which remains unaffected by subsequent
changes in law, unless modified expressly or by
necessary implication. Procedural law establishes a
mechanism for determining those rights and
liabilities and a machinery for enforcing them. Right
of appeal being a substantive right always acts
prospectively. It is trite law that every statute is
prospective unless it is expressly or by necessary
implication made to have retrospective operation.
24. Right of appeal may be a substantive right but
the procedure for filing the appeal including the
period of limitation cannot be called a substantive
right, and an aggrieved person cannot claim any
vested right claiming that he should be governed by
the old provision pertaining to period of limitation.
Procedural law is retrospective meaning thereby
that it will apply even to acts or transactions under
the repealed Act.
25. Law on the subject has also been elaborately
dealt with by this Court in various decisions and
reference may be made to a few of those decisions.
This Court in Garikapati Veeraya v. N. Subbiah
Choudhry [AIR 1957 SC 540] , New India Insurance
Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840],
Hitendra Vishnu Thakur v. State of
Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri)
1087] , Maharaja Chintamani Saran Nath
Shahdeo v. State of Bihar [(1999) 8 SCC 16]
and Shyam Sunder v. Ram Kumar [(2001) 8 SCC
24] , has elaborately discussed the scope and ambit
of an amending legislation and its retrospectivity
and held that every litigant has a vested right in
substantive law but no such right exists in
procedural law. This Court has held that the law
relating to forum and limitation is procedural in
67Page 68
nature whereas law relating to right of appeal even
though remedial is substantive in nature.
26. Therefore, unless the language used plainly
manifests in express terms or by necessary
implication a contrary intention a statute divesting
vested rights is to be construed as prospective, a
statute merely procedural is to be construed as
retrospective and a statute which while procedural
in its character, affects vested rights adversely is to
be construed as prospective.”
51. This judgment was strongly relied upon by Shri A.K.
Sanghi for the proposition that the law in force on the date of
the institution of an appeal, irrespective of the date of accrual of
the cause of action for filing an appeal, will govern the period of
limitation. Ordinarily, this may well be the case. As has been
noticed above, periods of limitation being procedural in nature
would apply retrospectively. On the facts in the judgment in the
Thirumalai case, it was held that the repealed provision
contained in the Foreign Exchange Regulation Act, namely,
Section 52 would not apply to an appeal filed long after
1.6.2000 when the Foreign Exchange Management Act came
into force, repealing the Foreign Exchange Regulation Act. It is
significant to note that Section 52(2) of the repealed Act
provided a period of limitation of 45 plus 45 days and no more
68Page 69
whereas Section 19(2) of FEMA provided for 45 days with no
cap thereafter provided sufficient cause to condone delay is
shown. On facts, in that case, the appeal was held to be
properly instituted under Section 19, which as has been stated
earlier, had no cap to condonation of delay. It was, therefore,
held that the Appellate Tribunal in that case could entertain the
appeal even after the period of 90 days had expired provided
sufficient cause for the delay was made out.
52. The present case stands on a slightly different footing.
The abortive appeal had been filed against orders passed in
March- April, 1992. The present appeal was filed under Section
128, which Section continues on the statute book till date.
Before its amendment in 2001, it provided a maximum period of
180 days within which an appeal could be filed. Time began to
run on 3.4.1992 under Section 128 pre amendment when the
appellant received the order of the Superintendent of Customs
intimating it about an order passed by the Collector of Customs
on 25.3.1992. Under Section 128 as it then stood a person
aggrieved by a decision or order passed by a Superintendent of
69Page 70
Customs could appeal to the Collector (Appeals) within three
months from the date of communication to him of such decision
or order. On the principles contained in Section 14 of the
Limitation Act the time taken in prosecuting an abortive
proceeding would have to be excluded as the appellant was
prosecuting bona fide with due diligence the appeal before
CEGAT which was allowed in its favour by CEGAT on
23.6.1998. The Department preferred an appeal against the
said order sometime in the year 2000 which appeal was
decided in their favour by this court only on 12.3.2003 by which
CEGAT’s order was set aside on the ground that CEGAT had
no jurisdiction to entertain such appeal. The time taken from
12.3.2003 to 23.5.2003, on which date the present appeal was
filed before the Commissioner (Appeals) would be within the
period of 180 days provided by the pre amended Section 128,
when added to the time taken between 3.4.1992 and
22.6.1992. The amended Section 128 has now reduced this
period, with effect from 2001, to 60 days plus 30 days, which is
90 days. The order that is challenged in the present case was
passed before 2001. The right of appeal within a period of 180
70Page 71
days (which includes the discretionary period of 90 days) from
the date of the said order was a right which vested in the
appellant. A shadow was cast by the abortive appeal from 1992
right upto 2003. This shadow was lifted when it became clear
that the proceeding filed in1992 was a proceeding before the
wrong forum. The vested right of appeal within the period of
180 days had not yet got over. Upon the lifting of the shadow, a
certain residuary period within which a proper appeal could be
filed still remained. That period would continue to be within the
period of 180 days notwithstanding the amendment made in
2001 as otherwise the right to appeal itself would vanish given
the shorter period of limitation provided by Section 128 after
2001.
53. We, therefore, set aside the order dated 25.2.2004 and
remand the case to CESTAT for a decision on merits. The
appeal is allowed in the aforesaid terms. There will be no order
as to costs.
…..………………J.
(A.K. Sikri)
71Page 72
…..………………J.
(R.F. Nariman)
New Delhi;
April 23, 2015.

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