KALPRAJ DHARAMSHI & ANR. v. KOTAK INVESTMENT ADVISORS LTD. & ANR.

The Judgment of the Court was delivered by B.R. GAVAI, J.

1Copy pinpoint1. Leave to file Civil Appeal in Diary No. 24125 of 2020 is granted.

2Copy pinpoint2. All these appeals, assail the judgment and order of the National D Company Law Appellate Tribunal, New Delhi (hereinafter referred to as “NCLAT”) dated 5.8.2020, passed in Company Appeal (AT) (Insolvency) Nos. 344-345 of 2020.

3Copy pinpoint3. By the said judgment and order dated 5.8.2020, NCLAT has allowed the appeals filed by Kotak Investment Advisors Limited E (hereinafter referred to as “KIAL”), respondent No.1 herein, aggrieved by two separate orders dated 28.11.2019 passed by National Company Law Tribunal, Mumbai Bench (hereinafter referred to as “NCLT” or “Adjudicating Authority”) in M.A. No.1039 of 2019 and M.A. No. 691 of 2019. NCLAT has set aside the said orders passed in the said M.As. M.A. No.1039 of 2019 was filed by KIAL objecting to grant of approval to the resolution plan submitted by Kalpraj Dharamshi and Rekha Jhunjhunwala, a consortium, (hereinafter referred to as “Kalpraj”), which is appellant in Civil Appeal Nos. 2943-2944 of 2020. NCLT has rejected the said M.A. Whereas, M.A. No. 691 of 2019 was filed by the Resolution Professional of Ricoh India Limited (hereinafter referred to as “the Corporate Debtor”) for grant of approval to the Resolution Plan submitted by Kalpraj. NCLT has allowed the said M.A. and approved the resolution plan submitted by Kalpraj.

4Copy pinpoint4. The facts in brief, giving rise to the present appeals are as under: The Corporate Debtor filed an application on 29.1.2018 before H NCLT under Section 10 of the Insolvency and Bankruptcy Code, 2016

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(hereinafter referred to as “I&B Code”) for initiation of Corporate A Insolvency Resolution Process (hereinafter referred to as “CIRP”) of itself vide Company Petition (IB) No. 156/MB/2018. NCLT vide order dated 14.5.2018, admitted the Petition and directed the moratorium to commence as prescribed under Section 14 of the I&B Code and directed certain statutory steps to be taken as a consequence thereof. Vide the B said order dated 14.5.2018, NCLT also appointed Mr. Krishna Chamadia as Interim Resolution Professional to carry out the functions as prescribed under the provisions of the I&B Code. The said Mr. Krishna Chamadia was subsequently confirmed as Resolution Professional (hereinafter referred to as ‘RP’) by the Committee of Creditors (hereinafter referred to as “CoC”) on 15.6.2018. C RP vide notification dated 9.7.2018 invited expression of interest (hereinafter referred to as “EOI”) to submit a resolution plan from interested resolution applicants, who fulfilled the minimum conditions stipulated in the said document (EOI). As per the said EOI, if any proposed applicant had any queries or clarifications, it was required to write to RP on or before 31.7.2018. The EOI was required to be submitted via email on the email address of RP or via post at the address mentioned in the said invitation on or before 8.8.2018. On the said date i.e. 9.7.2018, analogously, the first Form ‘G’ also came to be notified. Vide the said Form ‘G’, the last date prescribed for submission of Resolution Plan was on or before 21.9.2018. The second Form ‘G’ came to be issued on 24.8.2018, which required the Resolution Plans to be submitted on or before 28.9.2018. The third Form ‘G’ came to be issued on 28.9.2018, which required the Resolution Plans to be submitted on or before 25.10.2018. The fourth Form ‘G’ came to be issued on 9.11.2018, which required the Resolution Plans to be submitted on or before 13.12.2018. The fifth and the last Form ‘G’ came to be issued on 11.12.2018, which required the Resolution Plans to be submitted on or before 8.1.2019. KIAL, the appellant before NCLAT (respondent No.1 herein) and one Karvy Data Management Systems Limited submitted their G Resolution Plans on the last date as stipulated in the last and fifth Form ‘G’ i.e. on 8.1.2019. One another applicant i.e. WeP Solutions Ltd. submitted its Resolution Plan jointly with one Sattva Real Estate Private Limited (hereinafter referred to as “WeP”) on 13.1.2019. H

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A The appellant in Civil Appeal Nos. 2943-2944 of 2020 i.e. Kalpraj submitted its EOI and Resolution Plan to RP on 27.1.2019. On 29.1.2019, KIAL sent an email to RP, raising its objection permitting Kalpraj to submit Resolution Plan, beyond the prescribed time limit. In the meeting of CoC held on 30.1.2019, the Resolution Plan of Kalpraj was placed before CoC. In the said meeting, CoC resolved to B direct all the applicants to submit revised plans. Accordingly, an email was sent to KIAL directing it to submit its revised plan. Accordingly, KIAL submitted its revised plan on 1.2.2019. By another email dated 10.2.2019, KIAL once again objected to consideration of the plan submitted by Kalpraj. C It is the case of KIAL, that it had received an email on 11.2.2019 from RP, justifying the consideration of plan submitted by Kalpraj and asking it to submit a second revised plan. However, this is disputed by RP. However, it is not in dispute, that on 12.2.2019, revised plans were submitted by KIAL as well as Kalpraj. In the meeting of CoC held on D 13/14.2.2019, plan of Kalpraj came to be approved by a majority. After CoC had approved the plan of Kalpraj, RP applied for approval of the plan before NCLT on 18.2.2019 vide M.A. No. 691 of 2019 in Company Petition (IB) No. 156/MB/2018. After coming to know about RP applying for approval of the plan of Kalpraj, KIAL filed an application on 14.3.2019 being M.A. No.1039 of 2019, objecting to the E plan of Kalpraj. The objection was on the ground, that RP was not justified in permitting Kalpraj to submit a plan beyond the date prescribed in Form ‘G’ and that the decision of CoC to approve the plan submitted by Kalpraj was not in accordance with the I&B Code. Vide order dated 28.11.2019, NCLT allowed M.A. No.691 of 2019 and approved the F Resolution Plan of Kalpraj and by a separate order passed on the same day, NCLT rejected M.A. No.1039 of 2019, which was filed by KIAL objecting to the decision of CoC approving the plan submitted by Kalpraj. Contending, that the procedure followed by NCLT was in breach of the principles of natural justice, KIAL filed a writ petition before the Bombay High Court being Writ Petition (L) No.3621 of 2019, challenging G the aforesaid two orders passed by NCLT. The High Court dismissed the Writ Petition (L) No.3621 of 2019 filed by KIAL by judgment and order dated 28.1.2020, on the ground, that KIAL had an alternate and efficacious remedy of filing an appeal before NCLAT. KIAL thereafter filed appeals before NCLAT on 18.2.2020. The H appeals were opposed by Kalpraj and also by RP on the ground, that the

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appeals were filed beyond the limitation period prescribed under the A I&B Code and as such, ought not to be entertained. However, vide order dated 5.8.2020, NCLAT did not find favour with the objections raised by the respondents before it, with regard to limitation and further found, that the procedure adopted by RP and CoC was in breach of the provisions of the I&B Code and therefore, allowed the appeals filed by B KIAL. Vide the said order, NCLAT, while setting aside both the orders dated 28.11.2019, passed by NCLT, also directed CoC to take a decision afresh, in the light of the directions issued in its order, regarding consideration of the Resolution Plans, which were submitted prior to the prescribed date as per last Form ‘G’. This was directed to be done in a C period of ten days from the date of the said order. NCLAT further directed, that if no decision was communicated to the Adjudicating Authority i.e. NCLT and since the timeline for completion of CIRP had already expired, the Adjudicating Authority was to pass an order for liquidation of the corporate debtor. D

5Copy pinpoint5. Being aggrieved by the aforesaid order passed by NCLAT, four appeals have been filed before this Court, the details thereof are as under: Case No. & Cause title Particulars of the Cause title appellant E C.A. No.2943- Kalpraj Dharamshi & anr. Vs. Successful Resolution 2944/2020 Kotak Investment Advisors Applicant Ltd. & Anr.

C.A. No.3138- Deutsche Bank AG vs. Financial Creditor 3139 of 2020 Kotak Investment Advisors Ltd. & Ors. F C.A. No.2949- Krishna Chamadia (Erstwhile Erstwhile resolution 2950 of 2020 Resolution Profession of Ricoh professional India Ltd.) Vs. Kotak Investment Advisors Ltd. & Ors. G C.A. Fourth Dimension Solutions Claiming to be Largest D.No.24125 of Ltd. operational creditors 2020 Vs. Krishna Chamadia & Ors.

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6Copy pinpoint6. We have heard Shri Mukul Rohatgi, Dr. Abhishek Manu Singhvi and Shri Pinaki Mishra, learned Senior Counsel appearing for Kalpraj, Shri K.V. Viswanathan, learned Senior Counsel appearing for Deutsche Bank A.G. and CoC, Shri C.A. Sundaram, Shri Gopal Sankar Narayanan and Shri P.P. Chaudary, learned Senior Counsel appearing for Fourth Dimension Solutions Limited, Shri Shyam Divan, learned Senior Counsel B appearing for RP and Shri Neeraj Kishan Kaul, learned Senior Counsel appearing for KIAL. SUBMISSIONS OF SHRI MUKUL ROHATGI, LEARNED SENIOR COUNSEL APPEARING ON BEHALF OF KALPRAJ

7Copy pinpoint7. Shri Mukul Rohatgi, learned Senior Counsel submitted, that C though four Form ‘G’ were issued by RP inviting the Resolution Plans from the prospective resolution applicants, no plans were received from any of the prospective resolution applicants. He submitted, that in pursuance to the last and fifth Form ‘G’ published on 11.12.2018, only two Resolution Plans were received, that too, on the last date i.e. D 8.1.2019. He submitted, that in the meantime, Kalpraj submitted its plan on 27.1.2019. He submitted, that in the meeting of CoC held on 30.1.2019, in order to achieve the object of maximization, all the applicants were asked to submit their revised resolution plans. He submitted, that KIAL without demur, submitted its revised plans not only once but twice. It is therefore submitted, that having submitted its revised plans twice, KIAL E is now estopped from challenging the acceptance of the plan of Kalpraj. It is submitted, that in the meeting of CoC held on 13/14.2.2019, the plans came to be considered by CoC and CoC by the whopping majority of 84.36% voting rights approved the plan of Kalpraj. He submitted, that only one creditor i.e. Kotak Mahindra Bank Limited (hereinafter referred to as “Kotak Bank”), which is a holding company of KIAL, having voting rights of 0.97%, voted in favour of KIAL.

8Copy pinpoint8. Relying on the judgment of this Court in the case of K. Sashidhar vs. Indian Overseas Bank & Ors.1, Shri Rohatgi submitted, the opinion on the subject matter expressed by the creditors after due deliberation in CoC meeting through voting, which decision is taken as per the commercial wisdom, is not justiciable before the Adjudicating Authority. He also relied on the judgment of this Court in the case of Committee of Creditors of Essar Steel India Limited through Authorised Signatory vs. Satish Kumar Gupta & Ors.2 1 (2019) 12 SCC 150 H 2 (2019) SCC Online SC 1478

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9Copy pinpoint9. Shri Rohatgi further submitted, that as held by this Court in A Innoventive Industries Ltd. vs. ICICI Bank & Anr.3, I&B Code is a complete code in itself. He submitted, that Section 61(2) of the I&B Code provides, that the decision of the Adjudicating Authority (i.e. NCLT) may be challenged before NCLAT within 30 days. He submitted, that an appeal would be tenable within a further period of 15 days, only when B NCLAT comes to a satisfaction, that there was a sufficient cause for not filing the appeal within a period of 30 days. He submitted, that since the I&B Code is a complete Code, neither Section 5 nor Section 14 of the Limitation Act, 1963 (hereinafter referred to as “the Limitation Act”) would be applicable. He submitted, that the judgment of NCLT was delivered on 28.11.2019; certified copies of the same were made available C to KIAL on 18.12.2019; and appeals came to be filed on 18.2.2020. He submitted, even if KIAL was given the benefit of the period of 20 days for obtaining the certified copies, still the appeals ought to have been filed on 65th day from the order of NCLT. It would be somewhere on 1st/ 2nd February, 2020. However, the appeals were filed on 18.2.2020. He D submitted, that the litigant like KIAL, which has a team of legal experts at its disposal cannot be heard to say, that they were not aware of the alternate remedy and had bona fide filed the writ petition before the High Court. He submitted, that KIAL is not entitled to the benefit of the exclusion of period between 11.12.2019 i.e. the date of filing of the writ petition and 28.1.2020 i.e. the date of dismissal of the writ petition by the E High Court. He submitted, that provisions of Section 14 of the Limitation Act would not at all be applicable and that NCLAT has totally erred in law, in entertaining the appeals which were ex facie beyond limitation.

10Copy pinpoint10. Shri Rohatgi further submitted, that NCLT has approved the plan on 28.11.2019. He submitted, that though appeals were filed by F KIAL, there was no stay on the implementation of the resolution plan by Kalpraj till the impugned order was passed by NCLAT on 5.8.2020, whereunder, Kalpraj has taken various steps for implementation of the Resolution Plan submitted by it. He submitted, that Kalpraj has expended a total amount of Rs.300 crore (approx.) in the following manner: G “i. On 02.12.2019, a Public Announcement in respect of delisting of shares and exit offer to the public shareholders of the Corporate Debtor.

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A ii. On 13.12.2019, Rs.8,87,01,150/- (Rupees Eight Crores Eighty-Seven Lakh One Thousand One Hundred and Fifty only) was paid to 668 shareholders in exchange of their shares. iii. On 14.12.2019, a Post-offer public announcement was B issued by the Appellants recording inter alia that the said consideration has been paid to public shareholders. iv. On 20.12.2019, BSE issued a notice in respect of discontinuation of trading and delisting of equity shares of the Corporate Debtor. C v. On 23.12.2019, debentures worth Rs.21 crores were issued by the Corporate Debtor to Appellants. vi. On 27.12.2019, the share capital of the Company increased to INR. 100,00,00,000/- (Rupees One Hundred Crores only).

D vii. Minosha Digital Solutions Pvt. Ltd. merged with the Corporate Debtor with effect from 28.11.2019. viii. On 27.12.2019, the Appellants replaced the Bank Guarantee issued by Deutsche Bank for INR 136,66,71,090/- (Rupees One Hundred Thirty-Six Crores Sixty-Six Lakh Seventy- One Thousand and Ninety Only). E ix. On 30.12.2019, the CIRP costs amounting to INR.2,65,68,000/- (Rupees Two Crores Sixty-Five Lakh Sixty-Eight Thousand only) were paid by the Appellants. x. On 01.01.2020, the Appellants have made payment of INR F 19,54,43,411/- (Rupees Nineteen Crores Fifty-Four Lakh Forty-Three Thousand Four Hundred and Eleven) to non- related party operational creditors of the Corporate Debtor. xi. From 01.01.2020 to 03.01.2020, the Appellants have made Equity infusion of INR 3 crores and an Equity infusion of G INR 29 Crores in Company. xii. On 23.01.2020, Appellants made payments to Ricoh Company Limited and NRG Group Limited (minority shareholder) for the transfer of shares to Appellants. xiii. On 31.01.2020, the Board of directors of the Corporate H Debtor was reconstituted and the Appellants became the

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owners and stepped into the management and control of corporate debtor. It is no more a subsidiary of Ricoh Japan. xiv. The Appellants are shareholders of the Corporate Debtor which is known by its new name Minosha India Limited. xv. On 03.02.2020, the RP (who was the Monitoring Agent of the Monitoring Committee) issued a communication recording that the approved Resolution Plan has been implemented. xvi. As on 31.07.2020, a total of 21,90,958 no. of shares held by 809 shareholders have been tendered pursuant to the exit offer for a sum total of Rs.10,95,47,900/-. The said exit offer is subsisting till December 2020, in accordance with the applicable SEBI rules and regulations. xvii. Registrar of Companies has only noted and issued a certificate of the change in name of the Corporate Debtor D from Ricoh India Limited to Minosha India Limited.”

11Copy pinpoint11. Shri Rohatgi submitted, that NCLAT has grossly erred in holding, that the order passed by NCLT was in breach of the principles of natural justice on the premise, that the application of KIAL was heard by a single Member, whereas the decision was signed by two Members. He E submitted, that perusal of the record would reveal, that though M.A. No.1039 of 2019 i.e. objection of KIAL to the approval of plan of Kalpraj, was initially listed before the learned single Member, thereafter the proceedings would itself show, that the said application was listed before two learned Members on various dates along with main application i.e. M.A. No.691 of 2019. He submitted, that the counsels for KIAL have participated in the said proceedings before the Bench of two Members without demur. He submitted, that in any case, both, the application filed by KIAL as well as the main application filed by RP, were required to be decided together inasmuch as, the issues were interconnected and therefore, they are rightly decided by the orders passed on the same day. He therefore submitted, that the finding of NCLAT with regard to violation of the principles of natural justice is without any merit.

12Copy pinpoint12. Shri Rohatgi therefore submitted, that the appeals deserve to be allowed, the order of NCLAT be set aside and that of NCLT be restored. H

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A SUBMISSIONS BY DR. ABHISHEK MANU SINGHVI, LEARNED SENIOR COUNSEL APPEARING FOR KALPRAJ

13Copy pinpoint13. Dr. Abhishek Manu Singhvi, learned Senior Counsel also appeared on behalf of Kalpraj, which is also respondent in the other appeals. Dr. Singhvi submitted, that KIAL, in the covering letter along B with its Resolution Plan dated 8.1.2019, has unequivocally undertaken to waive any and all claims in respect of the Resolution Plan Process. He submitted, that the phrase ‘Resolution Plan Process’ is defined in clause 1.0 of the Process Memorandum which means, “the process set out in this Process Memorandum for submission, evaluation and selection of Resolution Plan and activities in relation or incidental thereto.” He C submitted, that in view of unconditional and irrevocable acceptance of the terms of the Process Memorandum and having voluntarily and expressly waived all claims with respect to the Resolution Plan Process, it is not permissible for KIAL to challenge the decision of CoC approving the Resolution Plan of Kalpraj. He submitted, that clause 10.4 of the D Process Memorandum itself provides, that RP was at liberty to receive any Resolution Plan, at any stage of the Resolution Plan Process and examine such Resolution Plan with the approval of CoC. Learned Senior Counsel submitted, that having chosen to revise its Resolution Plan and submit the same on 12.2.2019 in competition with Kalpraj, KIAL has clearly acquiesced to the consideration of the Resolution Plan of Kalpraj E by RP and CoC, even after the prescribed date of 8.1.2019 and has waived all objections to the consideration of such Resolution Plan. He submitted, that even the holding company of KIAL i.e. Kotak Bank of which KIAL is a 100% subsidiary also agreed with CoC counsel’s view, that the Resolution Plan of Kalpraj can be considered.

14Copy pinpoint14. Dr. Singhvi submitted, that the conduct of KIAL is totally indefensible. He submitted, that it amounts to taking chances in the process and after having failed there, then to challenge the process. He submitted, that KIAL had submitted its revised plans after knowing, that it was competing with Kalpraj, and only after it was not successful in the process G has chosen to challenge the same. He submitted, that the revised Resolution Plan submitted by KIAL does not state, that it is without prejudice to its contention, that the Resolution Plans submitted after 8.1.2019 ought not to have been considered by RP and CoC. He submitted, that even if such words were used they would not be significant. He relied on the judgment of this Court in the case of ITC Ltd. Vs. Blue H

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Coast Hotels Limited & Ors.4 and Tarapore & Company vs. Cochin A Shipyard Ltd., Cochin & Anr.5, in this regard.

15Copy pinpoint15. Dr. Singhvi further submitted, that Section 238 of the I&B Code provides, that the provisions of the Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. He therefore submitted, that the provisions B as contained in Section 61(2) of the I&B Code, which provides, that an appeal has to be filed within 30 days with a further enhanced period of 15 days, when NCLAT is satisfied, that a sufficient cause existed for not filing the appeal within 30 days, has to be strictly construed. He relied on the judgment of NCLAT in the case of Kumar Dutta prop. K.D. Trading vs. Simplex Infrastructure Ltd.6 and Asha Goyal vs. C Pharma Traders Pvt. Ltd.7 in that regard.

16Copy pinpoint16. Dr. Singhvi further submitted, that this Court in a catena of cases has held, that when under special statutes there is a provision for appeal and a self-contained provision for limitation, no extension would be possible beyond the period of time so stipulated. He relied on the D following judgments of this Court in this regard. (i) Union of India vs. Popular Construction Co.8, (ii) Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors.9, and E (iii) Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & Ors.10

17Copy pinpoint17. Dr. Singhvi further submitted, that NCLAT in two cases in Radhika Mehra vs. Vaayu Infrastructure LLP & Ors. 11 and Dhirendra Kumar vs. Randstand India Pvt. Ltd. & Anr.12 has held, F that the provisions of Section 14 of the Limitation Act cannot be made applicable to the appeal preferred under Section 67 of the I&B Code.

4 (2018) 15 SCC 99 5 (1984) 2 SCC 680 (PARA 33) 6 2019 SCC Online NCLAT 575 G 7 2019 SCC Online NCLAT 150 8 (2001) 8 SCC 470 9 (2008) 3 SCC 70 10 (2010) 5 SCC 23 11 2020 SCC Online NCLAT 532 12 2019 SCC Online NCLAT 444 H

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18Copy pinpoint18. Dr. Singhvi submitted, that in any case, it cannot be said, that filing of the writ petition was a bona fide act of KIAL. He submitted, that KIAL, which was armed with a battery of legal counsel, was very well aware, that it had an alternate remedy of filing an appeal before NCLAT and therefore, was not entitled to take an umbrella of Section 14 of the Limitation Act. In this regard, he relied on the judgment of this B Court in the case of Neeraj Jhanji vs. Commissioner of Customs & Central Excise 13.

19Copy pinpoint19. Dr. Singhvi also reiterated the submissions made on behalf of Kalpraj by Shri Mukul Rohatgi, learned Senior Counsel to the effect, that much water has flown after the Resolution Plan was approved by C NCLT and also highlighted the various steps taken by Kalpraj for implementation of the Resolution Plan. SUBMISSION OF SHRI K.V. VISWANATHAN, LEARNED SENIOR COUNSEL APPEARING ON BEHALF OF DEUTSCHE BANK A.G. AND CoC. D

20Copy pinpoint20. Shri K.V. Viswanathan, learned Senior Counsel appearing on behalf of Deutsche Bank, which is appellant in one of the appeals and CoC, which is respondent in some of the appeals submitted, that the order passed by NCLAT was not sustainable inasmuch as, CoC was not made a party before NCLAT. He submitted, that CoC had acted bona E fide only with a view of achieving maximization, by permitting Kalpraj to participate. He submitted, that CoC had approved the Resolution Plan submitted by Kalpraj by a thumping majority of 84.36%. He submitted, that the commercial wisdom of CoC is not open to judicial scrutiny by the Adjudicating Authority, unless it falls within the statutory parameters and as such, NCLT has rightly rejected the objection of KIAL and F NCLAT has erred in interfering with the same. He submitted, that no prejudice is caused to KIAL on account of deviation of the procedure, if any. In this regard, he relied on the judgment of this Court in the case of G.J. Fernandez vs. State of Karnataka & Ors.14. SUBMISSION OF SHRI SHYAM DIVAN, LEARNED G SENIOR COUNSEL APPEARING FOR RP

21Copy pinpoint21. Shri Shyam Divan, learned Senior Counsel appearing on behalf of RP submitted, that RP had acted bona fide in order to fetch the maximum benefit to the Company. He submitted, that even after the 13 (2015) 12 SCC 695 H 14 (1990) 2 SCC 488

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prescribed last date, in view of clause 10.4 of the Process Memorandum, A RP was entitled to consider the plans received subsequently with the approval of CoC. He submitted, that RP therefore had bona fide accepted the plan of Kalpraj and not only that but had also given an opportunity to KIAL to submit its revised plans, so as to compete with Kalpraj. Shri Divan also advanced the arguments on similar lines as were advanced by the other counsel on the grounds of limitation, acquiescence, etc. B SUBMISSION OF SHRI C.A. SUNDARAM, LEARNED SENIOR COUNSEL APPEARING FOR FOURTH DIMENSION SOLUTIONS LIMITED

22Copy pinpoint22. Shri C.A. Sundaram, learned Senior Counsel appearing for Fourth Dimension Solutions Limited, appellant in Civil Appeal D.No.24125 C of 2020, which claims to have the highest amount recoverable from the Corporate Debtor submitted, that the said appellant is not concerned with the dispute between the parties, which is the subject matter of consideration in the present appeals. It is further contended, that the appellants’ dues are subject matter of pending arbitration proceeding between the Corporate Debtor and the appellants and is yet to attain finality, so as to liquidate the dues. It is aggrieved by the direction given in paragraph 39 by NCLT in its order dated 28.11.2019 in M.A. No.691 of 2019. The learned Senior Counsel submitted, that by the said direction it is directed, that the Resolution Applicant who stepped into the shoes of Corporate Debtor subsequent to the approval of the Resolution Plan by it, shall not be held responsible for any outstanding statutory dues and other claims for the period before commencement of CIRP. In the submission of Shri Sundaram, this direction is prejudicial to the appellant, which is the largest operational creditor entitled to recover an amount of 551 crores (approx..) from the Corporate Debtor. It is also contended, that the claim of the appellant – Fourth Dimension, though has been shown in the information memorandum by RP, it has not been considered by CoC or any of the applicants in their resolution plan. He relied on the judgment/order dated 16.11.2020 passed by this Court in Civil Appeal No. 2798 of 2020 [NTPC Ltd. (Simhadri Project) vs. Rajiv Chakraborty] G SUBMISSION OF SHRI NEERAJ KISHAN KAUL, LEARNED SENIOR COUNSEL APPEARING FOR KIAL

23Copy pinpoint23. Shri Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf of KIAL, while replying to the arguments advanced on behalf of the appellants made manifold submissions. H

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24Copy pinpoint24. In reply to the submission on behalf of the appellants, that the appeals filed by KIAL before NCLAT being barred by limitation, the learned Senior Counsel submitted, that the arguments advanced were not correct in law and NCLAT has rightly held the appeals to be within limitation. He submitted, that though non-exercise of jurisdiction by the High Court under Article 226 of the Constitution, in case of availability B of alternate remedy is the normal practice, the same is a rule of self- restraint and not hard and fast rule. It is submitted, that the High Court has wide jurisdiction under Article 226 of the Constitution and in a given case it can entertain a petition under Article 226 in spite of the availability of an alternate and efficacious remedy. He submitted, that this Court C itself in a catena of cases has carved out categories wherein, the High Court is entitled to exercise its jurisdiction under Article 226 in spite of the availability of alternate remedy. He submitted, that one such category is where the proceedings challenged before the High Court are proceeded in breach of principles of natural justice. The learned Senior Counsel has relied on the following judgments of this Court in support of this D proposition. (i) Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors.15, (ii) Babu Ram Prakash Chandra Maheshwari vs. Antarim E Zilla Parishad Muzaffar Nagar16; and (iii) Nivedita Sharma vs. Cellular Operators Association of India & Ors.17

25Copy pinpoint25. Shri Kaul submitted, that perusal of the record would reveal, that immediately after the filing of application by RP before NCLT for approval of Resolution Plans submitted by Kalpraj, KIAL had filed an application objecting thereto being M.A. No.1039 of 2019. He submitted, that perusal of the order-sheet of NCLT dated 3.7.2019 would reveal, that the application filed by KIAL and one another application being M.A. No.2023 of 2019 were heard by the learned single Member and reserved for orders. He submitted, that insofar as M.A. No.691 of 2019 is concerned, the order dated 3.7.2019 would show, that the said application was directed to be kept on 23.7.2019 at 2.30 p.m. along with

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other applications for consideration of resolution plan on its commercial aspect. The other matters were directed to be kept for hearing on 15.7.2019. It is further submitted, that when M.A. No.691 of 2019 was listed on 23.7.2019, it was directed to be heard on 7.8.2019 at 2.30 p.m. On 7.8.2019, M.A. No. 691 of 2019 was listed, for the first time, before the Bench consisting of two Members and on that date the matter came to be adjourned to 26.8.2019. Again on 26.8.2019, the matter came up before the Division Bench and the Division Bench directed the same to be kept on 6.9.2019. On 6.9.2019, the Division Bench adjourned the matter to 17.9.2019 at 2.30 p.m. Again on 17.9.2019, the matter came up before the Division Bench which directed it to be adjourned to 19.9.2019. Finally, on 19.9.2019, M.A. No.691 of 2019 was heard on C Resolution Plan and reserved for orders. Learned counsel therefore submitted, that it is clear from the record, that M.A. No.1039 of 2019 filed by KIAL, was heard on 3.7.2019 by the learned single Member and reserved for orders. However, M.A. No. 691 of 2019 was heard by the Division Bench on 19.9.2019. Learned counsel therefore submitted, D that the orders in M.A. No. 1039 of 2019 could have been passed only by the learned single Member. However, by two orders passed on even date i.e. 28.11.2019, the Division Bench rejected the application of KIAL and allowed the application filed by RP thereby, approving the Resolution Plan submitted by Kalpraj.

26Copy pinpoint26. Learned Senior Counsel submitted, that in this background E KIAL was justified in invoking the jurisdiction of the High Court under Article 226 of the Constitution inasmuch as, the proceedings conducted by NCLT were totally in breach of the principles of natural justice, as the matter was heard by a single Member whereas, the orders were passed by the Division Bench. Learned counsel submitted, that the High F Court while dismissing the writ petition and relegating KIAL to alternate remedy available in law has passed an elaborate order. Learned Senior Counsel therefore submitted, that it does not lie in the mouth of the appellants, that KIAL had not approached the High Court bona fide. Learned Senior Counsel submitted, that in view of various judgments delivered by this Court, the High Court could have entertained a petition G under Article 226, when the proceedings were conducted in breach of the principles of natural justice.

27Copy pinpoint27. Shri Kaul, learned Senior Counsel therefore submitted, that NCLAT was right in law in giving the benefit of the period for which H

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A KIAL was bona fide prosecuting its writ petition before the Bombay High Court. Learned Senior Counsel submitted, that if that period is considered, the appeals filed by KIAL are very well within the limitation.

28Copy pinpoint28. Learned Senior Counsel submitted, that the purpose behind Article 14 of the Limitation Act is to advance justice and not to halt B justice. He submitted, that Section 14 enables a party to get the benefit of the period for which it was bona fide prosecuting the remedy before a wrong forum. Learned counsel submitted, that a liberal approach is required to be given to the provisions of Article 14. Learned counsel relied on the judgments of this Court in the case of Ketan V. Parekh vs. Special Director, Directorate of Enforcement & Anr.18, M.P. Steel C Corporation vs. Commissioner of Central Excise19 and Union of India & Ors. vs. West Coast Paper Mills Ltd. & Anr.20 in this regard.

29Copy pinpoint29. Insofar as the arguments of the appellants with regard to acquiescence and waiver are concerned, learned Senior Counsel submitted, that, at the earliest opportunity, KIAL has objected to Kalpraj D submitting its Resolution Plan. He submitted, that on KIAL coming to know, that the Resolution Plan of Kalpraj was accepted beyond 8.1.2019, KIAL objected to it vide email dated 29.1.2019 addressed to RP. He submitted, that RP had replied to its email on 30.1.2019 and requested to submit amended Resolution Plan by 3.00 p.m. on 1.2.2019. He submitted, that in the said email it is also mentioned, that “CoC reserves the rights to not consider your plan, if received after the said timeline”. He submitted, that accordingly, KIAL had no other option but to submit its revised plan.

30Copy pinpoint30. Learned Senior Counsel submitted, that even after submission of the revised plan, KIAL did not hear anything from RP and therefore vide email dated 10.2.2019, addressed to RP, it again raised its objection. The said email was replied to by RP on 11.2.2019 wherein, RP stated, that the resolution plans submitted after the due date also could be considered, in the spirit of value maximisation of assets of the corporate debtor. He submitted, that again vide communication dated 11.2.2019, KIAL was required to submit a revised bid, which was submitted by it on 12.2.2019. Learned counsel therefore submitted, that it is clear from the record, that KIAL had objected to the participation of Kalpraj at the earliest possible opportunity i.e. on 29.1.2019. Not only that, thereafter 18 (2011) 15 SCC 30 19 (2015) 7 SCC 58 20 H (2004) 3 SCC 458

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KIAL continued to object to the participation of Kalpraj. Revised plans were submitted by KIAL under compulsion inasmuch as, if it would not have submitted its revised plans, on that ground alone it had to face the risk of being ousted from consideration. It is therefore submitted, that the contention, that KIAL has acquiesced to the participation of Kalpraj and was therefore estopped from challenging its participation is without any substance. Learned counsel submitted, that the contention, that KIAL was taking chances is also totally incorrect. It had objected to the participation of Kalpraj at the very first opportunity and continued to object till CoC approved its plan and also thereafter, by way of an application before NCLT objecting to the approval of the Resolution Plan of Kalpraj. C

31Copy pinpoint31. Learned counsel further submitted, that the contention, that KIAL is a subsidiary of Kotak Bank and that Kotak Bank had also not objected to Kalpraj submitting its Resolution Plan and therefore the same amounted to acquiescence is also not correct. He submitted, that firstly, in the reply filed by RP to the application filed by KIAL in NCLT, there D is no plea regarding the Kotak Bank’s consensus. He however submitted, that in any case in view of the judgment of this Court in the case of Vodafone International Holdings BV vs. Union of India & Anr.21, both KIAL and Kotak Bank are different corporate entities and any act of Kotak Bank cannot bind KIAL. E

32Copy pinpoint32. On merits, Shri Kaul would submit, that the entire process adopted by RP and CoC was contrary to the statutory provisions, fair play and transparency. He submitted, that perusal of the definition of ‘applicant’ in the Process Memorandum in clause 1.0 would show, that for being a resolution applicant, one has to be an applicant who has applied within the prescribed period either under EOI or Form ‘G’. It is submitted, that since Kalpraj had neither responded within the period prescribed under EOI or any of the Form ‘G’, it could not have been considered to be a resolution applicant. He submitted, that the entire participation of Kalpraj is illegal. He submitted, that after the plan was submitted by KIAL there was a detailed discussion with RP with regard to the plan submitted by it, wherein entire plan was disclosed, after which Kalpraj was permitted to step in. He submitted, that perusal of the Resolution Plan of Kalpraj would reveal, that it is identical with the plans submitted by KIAL, with a little variation to the extent, that in the plan of 21 (2012) 6 SCC 613 H

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A KIAL the provision made for minority shareholder is Rs.1 crore whereas, in the plan of Kalpraj it is Rs. 50 crore. He submitted, that the entire conduct of RP as well as CoC would reveal, that they had acted in a manner that smacks of favouritism to Kalpraj and were determined to anyhow approve the plan of Kalpraj. It is submitted, that all these aspects have been rightly considered by NCLAT and therefore, the appeals deserve to be dismissed.

33Copy pinpoint33. With regard to the contention of the appellant/Kalpraj, that it has taken several steps in pursuance of the Resolution Plan, which was approved by NCLT and any interference at this stage would cause great prejudice to many stakeholders, learned counsel submitted, that not much has been done under the Resolution Plan. He submits, in any case, whatever steps have been taken are almost identical with the steps that KIAL would have taken inasmuch as, the Resolution Plan submitted by Kalpraj is almost identical with the Resolution Plan submitted by KIAL. He submitted, that in any case, whatever amount has been spent by Kalpraj, the same could be reimbursed by KIAL and further steps being continued to be taken by KIAL, so as to take the Resolution Plan to the logical end.

34Copy pinpoint34. Insofar as the judgment of NCLAT in the case of Binani Industries Limited vs. Bank of Baroda & Anr.22 is concerned, learned counsel submitted, that the said judgment is totally distinguishable inasmuch as, in the said case both applicants had submitted their plans and revised plans within the stipulated period.

35Copy pinpoint35. In view of the rival submissions, following questions arise for our consideration. (i) Whether the appeals filed by KIAL before NCLAT were within limitation? (ii) Whether there was waiver and acquiescence by KIAL, so as to estop it from challenging the participation of Kalpraj? (iii) Whether NCLAT was right in law in interfering with the decision of CoC of accepting the resolution plan of Kalpraj? G (i) WHETHER THE APPEALS FILED BY KIAL BEFORE NCLAT WERE WITHIN LIMITATION?

36Copy pinpoint36. For appreciating the rival contentions in this regard, it would be appropriate to refer to Section 29(2) of the Limitation Act, so also the provisions of Section 61 and Section 238A of the I&B Code. 22 H 2018 SCC Online NCLAT 565

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Section 29(2) of the Limitation Act. A “29. Savings.—(1) ……. (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.” Section 61 and 238A of the I&B Code “61. Appeals and Appellate Authority.—(1) Notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating D Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: E Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. F (3) An appeal against an order approving a resolution plan under Section 31 may be filed on the following grounds, namely— (i) the approved resolution plan is in contravention of the provisions of any law for the time being in G force; (ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; H

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A (iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board; (iv) the insolvency resolution process costs have not B been provided for repayment in priority to all other debts; or (v) the resolution plan does not comply with any other criteria specified by the Board. (4) An appeal against a liquidation order passed under C Section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order.” “238-A. Limitation.—The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, D the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be.”

37Copy pinpoint37. Perusal of the aforesaid would reveal, that though the provisions of the Limitation Act, as far as may be, would apply to the proceedings or appeals before the Adjudicating Authority, NCLAT, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, where a period of limitation for initiation of proceedings is provided under any special or local law, 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. It would further reveal, that 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 in so far, and to the extent to which, they are not expressly excluded by such special or local law.

38Copy pinpoint38. An appeal is provided before NCLAT under sub-section (1) G of Section 61 of the I&B Code to any person, who is aggrieved by the order of the Adjudicating Authority. Sub-section (2) of Section 61 of the I&B Code provides, that every appeal under sub-section (1) shall be filed within thirty days before NCLAT. The proviso thereto further provides, that NCLAT may allow an appeal to be filed after the expiry H of the said period of thirty days if it is satisfied, that there was sufficient

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cause for not filing the appeal. However, such period shall not exceed fifteen days.

39Copy pinpoint39. Since there is a period different from the one which is prescribed by the Schedule to the Limitation Act, the limitation for an appeal would be governed by Section 61 of the I&B Code, which is a special statute. As such, an appeal will have to be preferred within a period of thirty days from the date on which the order was passed by NCLT. However, if NCLAT is satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days, it may allow an appeal to be filed within a further period of fifteen days. As such, the normal period of limitation prescribed under the I&B Code is thirty days, with a provision for allowing the filing of an appeal within a further period of fifteen days, if NCLAT is satisfied, that there was a sufficient cause for not filing the appeal within thirty days.

40Copy pinpoint40. In the present case, the dates are not in dispute. The judgment of NCLT is dated 28.11.2019. As such, as per Section 61(2) of the I&B Code, the appeal was required to be filed on or prior to 28.12.2019. The D appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12.1.2020. The certified copy of the impugned judgment of NCLT was made available on 18.12.2019. If the allowance for the said period is granted, the appeal should have been preferred on or prior to 2.2.2020. However, in the present case, the appeal is filed on 18.2.2020. It is also not in dispute, that immediately after the order was passed on 28.11.2019 by NCLT, KIAL preferred a writ petition being Writ Petition (L) No. 3621 of 2019 before the Division Bench of the Bombay High Court on 11.12.2019. The said writ petition came to be dismissed on 28.1.2020 on the ground, that KIAL had an alternate and efficacious remedy available under Section 61 of the I&B Code and as such, it was relegated to the alternate remedy available in law.

41Copy pinpoint41. It is strenuously urged on behalf of all the appellants except Fourth Dimension Solutions Ltd., that the I&B Code is a complete code in itself, which also provides for a period of limitation and as such, Section 14 of the Limitation Act would not be available to KIAL.

42Copy pinpoint42. On the contrary, it is urged on behalf of KIAL, that since the order passed by NCLT was passed in utter breach of the principles of natural justice, it had bona fide filed a writ petition before the Division H

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A Bench of the Bombay High Court. It is urged, that by an elaborate order the writ petition came to be dismissed, on the ground of availability of alternate remedy. It is therefore urged, that the provisions of Section 14 or at least the principles laid down therein, would be available to KIAL and as such, the appeals, as filed will have to be held to be within limitation.

43Copy pinpoint43. Therefore, the crucial question, that arises for consideration, is as to whether the provisions of Section 14 of the Limitation Act or the principles laid down therein would be available to KIAL for exclusion of the period during which it was prosecuting the writ petition before the Division Bench of the Bombay High Court.

44Copy pinpoint44. It will be relevant to refer to Section 14 of the Limitation Act. “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, D 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.

E (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,— H

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(a) in excluding the time during which a former civil A proceeding was pending, the day on which that 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; B (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”

45Copy pinpoint45. The conditions that are required to be fulfilled for invoking the provisions of Section 14 of the Limitation Act have been succinctly spelt C out in various judgments of this Court including the one in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others23, which read thus: “21. ”Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On D 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; E (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; F (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.”

46Copy pinpoint46. Perusal of the aforesaid conditions would make it amply clear, that one of the conditions that is required to be fulfilled is that both the G proceedings are in a court. The question as to whether the provisions of Section 14 of the Limitation Act would also be applicable to the quasi- judicial forums as against the court, fell for consideration before this Court in the case of M.P. Steel Corporation (supra). This Court after 23 (2008) 7 SCC 169 H

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A an elaborate survey of the various judgments of this Court, including judgment in the cases of Bharat Bank Ltd., Delhi vs. Employees of the Bharat Bank Ltd., Delhi24, Town Municipal Council, Athani vs. Presiding Officer, Labour Courts, Hubli and others etc.25, Nityananda M. Joshi and others vs. Life Insurance Corporation of India and others26, Commissioner of Sales Tax. U.P., Lucknow vs. Parson Tools B and Plants, Kanpur27, Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumma28, Officer on Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others 29 and Consolidated Engineering Enterprises (supra) held, that the word “court” in Section 14 takes its colour from the preceding words “civil C proceedings”. It was therefore held, that the Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal. It was held, that since the appeal as mentioned in Section 128 of the Customs Act is not before a Court, the provisions of Section 14 would not be applicable.

47Copy pinpoint47. All the authorities cited above, including Consolidated Engineering Enterprises (supra), have been elaborately discussed in the judgment of this Court in the case of M.P. Steel Corporation (supra) and therefore, we refrain from burdening the present judgment by reproducing the observations made in those judgments.

48Copy pinpoint48. This Court in M.P. Steel Corporation (supra) further observed, that the judgment of this Court in the case of Commissioner of Sales Tax, U.P. vs. Madan Lal Das & Sons, Bareilly30 had not considered the law laid down in Parson Tools and Plants (supra) and the other judgments nor the aforesaid decisions were pointed out to the Court and therefore, the said judgment in the case of Madan Lal Das & Sons F (supra) was not an authority for the proposition, that the Limitation Act would apply to Tribunals.

49Copy pinpoint49. After having held, that the Limitation Act, including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal, this Court in M.P. Steel Corporation (supra) observed thus: G 24 AIR 1950 SC 188 = 1950 SCR 459 25 (1969) 1 SCC 873 26 (1969) 2 SCC 199 27 (1975) 4 SCC 22 28 (1976) 4 SCC 634 29 (1996) 9 SCC 414 H 30 (1976) 4 SCC 464

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“….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 v. Nabi Bux [(1969) 2 SCC 481 : (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: (SCC p. 485, para 9) ‘9. Before considering the meaning of the word ‘held’ in Section 9, it is necessary to mention that it is proper to assume that the lawmakers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. C The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on ‘Statutory Constructions’ that 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 lawmakers. 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.’

39. This is why the principles of Section 14 were applied in J. Kumaradasan Nair v. Iric Sohan [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656] to a revision application filed before the High F Court of Kerala. The Court held: (SCC pp. 180-81, paras 16-18) ‘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 G broadbased 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 cannot be any doubt whatsoever that the same would be applicable to a case of this nature. H

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A 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.’

40. The Court further quoted from Consolidated Engg. Enterprises [(2008) 7 SCC 169] an instructive passage: (Iric Sohan case [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656], SCC F p. 183, para 21) ‘21. In Consolidated Engg. Enterprises v. Irrigation Deptt. [(2008) 7 SCC 169] this Court held: (SCC p. 181, para 22)

G ‘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 H

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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 1996 Act. 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, should be excluded.’ E See Shakti Tubes Ltd. v. State of Bihar [(2009) 1 SCC 786 : (2009) 1 SCC (Civ) 370].’ “

50Copy pinpoint50. Thus, this Court relying on the earlier judgments in the cases of Bhudan Singh and another vs. Nabi Bux and another 31, J. Kumaradasan Nair and another vs. Iric Sohan and others32, and F Consolidated Engineering Enterprises (supra) observed, that the object of enacting the legislation is to advance public welfare. 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. It has been held by this Court, that in the absence of G 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. It is further observed, that the provisions contained 31 (1969) 2 SCC 481 32 (2009) 12 SCC 175 H

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A in Sections 5 and 14 of the Limitation Act are meant for grant of relief, where a person has committed some mistake. In J. Kumaradasan Nair (supra), it has been observed, that 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 applicable.

51Copy pinpoint51. In Consolidated Engineering Enterprises (supra), it has been observed, that 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 has been observed, that an element of mistake is inherent in the invocation of Section 14. The section, in fact, is intended to provide a relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. It has been observed, that the legislature has enacted Section 14 to exempt a certain period covered by a bona fide litigious activity. It has been held, that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded. It could thus be seen, that this Court has in unequivocal terms held, that when a litigant bona fide under a mistake litigates before a wrong forum, he would be entitled for exclusion of the period, during which he was bona fide prosecuting such a wrong remedy. Though strictly, the provisions of Section 14 of the Limitation Act would not be applicable to the proceedings before a quasi-judicial Tribunal, however, the principles underlying the same would be applicable i.e. the proper approach will have to be of advancing the cause of justice, rather than to abort the proceedings.

52Copy pinpoint52. An argument similar to the one which is advanced before us, that since the Code is a complete Code in itself, the limitation as provided only under the Code would govern the field and would exclude the application of provisions of Section 14 of the Limitation Act was made in the case of M.P. Steel Corporation (supra). While considering this objection, this Court observed thus: “42. 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 [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] which has been discussed hereinabove. As has already been stated, Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR H

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