The Property Company (P) Ltd. v. Rohinten Daddy Mazda

The Property Company (P) Ltd. v. Rohinten Daddy Mazda

appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the “prescribed period”, the days excluded from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed. […].” (Emphasis supplied)

78. One might still take the view that the difference between extension and exclusion is only semantic. However, such a view would seriously misconstrue the plain language and intent underlying these two provisions. On the one hand, when the court extends time under Section 5, what essentially occurs is that the applicant is required to satisfy the court about the existence of a sufficient cause starting from the date on which limitation began till the actual date of filing. Upon being satisfied about the existence of sufficient cause, the court then extends the prescribed period of limitation itself till the date of filing of the appeal or application, as the case may be, such that the appeal or application is deemed to have been filed within limitation, under the eyes of law. In other words, the non-filing of the appeal or the application within prescribed period of limitation is only excused and the mandatory bar under Section 3 of the Act, 1963 is overcome by stretching out the prescribed period of limitation, through discretion, in the peculiar facts and circumstances of each case.

79. On the other hand, when the court is contemplating the exclusion of time under Section 14, the prescribed period of limitation continues to be unaltered. What happens is that, in computing the limitation period, the time during which the applicant was prosecuting the abortive proceeding is altogether excluded. This is substantiated by the observation of this Court in M.P. Steel (supra) that – “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 statute concerned continues to be the stated period and not more than the stated period.”.

80. The effect of the exclusion is, therefore, that, the applicant or the appellant, as the case may be, is placed in a position wherein it is assumed that the abortive proceeding never even occurred in the first place. The law permits such an assumption if the ingredients under Section 14 are satisfied. There arises no question of stretching

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out the prescribed period of limitation through discretion. It is as though the time during which the abortive proceeding was prosecuted is expunged in the eyes of law. Such an erasure is allowed also because no delay could be said to be attributed to the applicant or the appellant, as the case may be.

81. However, when an extension occurs under Section 5, the delay is, in clear terms, attributed to the applicant or the appellant, as the case may be. It is just that such a delay does not have the consequence of the application or the appeal being disallowed due to the mandate under Section 3 of the Act, 1963. The effect of Section 5 is that the period during which the sufficient cause persisted is not erased in the eyes of law; rather the prescribed period of limitation is discretionarily adjusted for the benefit of the litigant.

82. In simple terms, it could be said that, under Section 5, it is the limitation period itself which is being discretionarily extended; whereas, under Section 14, the clock is reversed and the litigant’s position is restored to some specific date which is within the prescribed period of limitation. After being placed back within the prescribed period of limitation, the litigant would thereafter be “entitled” to file the appeal or application, as the case may be, as a “matter of right”. There arises no such question of right insofar as the mechanism contemplated under Section 5 is concerned. Under Section 5, even after satisfying the court that sufficient cause existed, the litigant cannot claim the extension as a matter of right, since it is the exercise of discretion which is the decisive factor.

83. To illustrate, if the prescribed period of limitation for preferring some appeal/application is 180 days, and say, the litigant prefers the same appeal/application on the 300th day - Here, the effect of Section 5 would be that, if sufficient cause existed, the limitation period itself is extended such that it becomes 300 days. Now consider the same appeal/application for which the prescribed period of limitation is 180 days, and say, the applicant was prosecuting an abortive proceeding from the 120th day - Here, the effect of a Section 14 application would be that, if its pre-requisites are fulfilled, the clock is turned back and the applicant is placed, yet again, on the 120th day i.e., the date on which he could file the same appeal/application as a matter of right.

84. This nuanced distinction between extension and exclusion is relevant for our discussion on whether the principles underlying Sections

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5 and 14 of the Act, 1963 could both be analogously applied to proceedings before quasi-judicial bodies because, as aforementioned, under Section 5, the courts exercise discretion in extending and more specifically, adjusting the prescribed period of limitation itself to create a fresh period of limitation. Whereas, insofar as Section 14 is concerned, the prescribed period of limitation remains intact. The mechanism envisaged under Section 5 is proximally bound and tethered to the discretion with which a civil court is empowered and that under Section 14 is anchored on restoring the right of a litigant to institute an appeal or application, as the case may be, within the prescribed period of limitation. This restoration is based on fixed and well-defined conditions which leaves no room for any exercise of discretion. In other words, Section 14 allows the litigant to file the appeal or the application, as the case may be, as a matter of right by reinstating him on a specific point in the timeline wherein he is entitled to exercise the said right, whereas Section 5 acknowledges that he may not be entitled as a matter of right to file the appeal or the application, as the case may be, but extends time in his favour due to some inherent discretion vested in civil courts.

85. Both provisions work in the interest of the litigant and seek to further the cause of substantive justice, however, the kind and nature of the power exercised under the two provisions, as well as the mechanism envisaged therein, are quite distinct.

86. Another key difference between Sections 5 and 14 of the Act, 1963 respectively was pointed out by the decision of this Court in Sakaru v. Tanaji reported in (1985) 3 SCC 590. While Section 14 pertains to “computation of the period of limitation”, Section 5 is a provision that comes into play once such a computation is already completed and the appeal or the application, as the case may be, is still beyond the prescribed period of limitation. To put it simply, the discretion to ‘extend’ time can only be contemplated once the process of computation (which includes ‘exclusion’ of time) is done with. The relevant observations are thus:

3. […] The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with “computation of the period of limitation”. It is only after the process of computation is

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completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.” (Emphasis supplied)

87. Despite the differences delineated above, as a last resort, one could possibly cite the discussion undertaken by this Court in M.P. Steel (supra) whereby, Sections 6 and 14 of the Act, 1963 and their underlying principles were equated and it was stated that both can be analogously applied to quasi-judicial bodies. Moreover, one would also be right in pointing out that while Section 14 is a computation provision, Section 6 is not. In that context, the question would arise as to why the rationale adopted for Section 6 cannot be true for Section 5 as well?

88. We are of the view that there exist several identical features between Sections 6 and 14 of the Act, 1963 respectively and the same identity cannot be said to exist vis-á-vis Section 5. Section 6 which deals with “legal disability” is similar to Section 14 on several aspects – First, it is also a provision which envisages ‘exclusion of time’ and has nothing to do with extension of time. Secondly, the provision is also mandatory in nature and the use of the word “may” does not refer to the discretion granted to the court, but rather, the discretion given to the litigant to institute a suit or an application, as the case may be. Thirdly, it also indicates that after the period during which the legal disability persisted is excluded, the litigant is entitled to institute the suit or the application, as the case may be, as a “matter of right”. This is evident from the use of the words “Where a person entitled…, as would otherwise have been allowed”.

89. As we have explained in the preceding paragraphs, such points of identity does not exist vis-á-vis Section 5.

90. In light of all the aforesaid, it is our view that the discretionary power to adjust the period of limitation itself, must be specifically granted to the concerned quasi-judicial body or tribunal and there must be a reasonable indication from the language of the statute that such a discretion which is otherwise vested in civil courts, is also vested in the concerned quasi-judicial body. We can think of two ways in which this can be done:

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a. Through a proviso or a sub-section in the concerned section stating that the quasi-judicial body can extend time for filing the said appeal or application, as the case may be, upon the satisfaction that sufficient cause existed. To illustrate, such a sub-rule or proviso may read thus - “provided that the Company Law Board may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding 60 days” or “…within a further period of 60 days” or “…within a period of 60 days but not thereafter”. Courts have interpreted such provisions to confer a limited discretionary power to the quasi-judicial bodies to extend time. We say that it is limited because the exercise of such discretion is subject to an outer-limit (which is 60 days in our illustration). If no such outer-limit is prescribed, then the discretionary power to extend time would be unlimited. b. Through a separate provision within the scheme of the entire legislation stating that the quasi-judicial body would be able to apply the provisions of the Act, 1963 (akin to that of Section 433 of the Act, 2013). To illustrate, such a separate provision may read thus – “The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to proceedings or appeals before the Company Law Board”. Such a provision would have empowered the CLB to exercise the discretionary power to apply Section 5 of the Act, 1963. We say so also because, at present, the NCLT and NCLAT do exercise their discretionary powers to extend time, as regards proceedings and appeals before themselves, due to the coming into force of Section 433 of the Act, 2013. The only restriction to the exercise of such a discretion would be an outer-limit, if any, indicated by the concerned provision, owing to the use of the words “as far as may be” in provisions like Section 433 of the Act, 2013.

91. To obviate any confusion, we have noted that the phrase “as far as may be”, by itself, may not be sufficient to preclude the application

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of Section 5 of the Act, 1963 altogether. The decision of this Court in Sesh Nath Singh and Another v. Baidyabati Sheoraphuli Co- operative Bank Limited and Another reported in (2021) 7 SCC 313 provides some important clarification in that regard. Section 238-A of the Insolvency and Bankruptcy Code, 2016 (hereinafter, the “IBC, 2016”) is pari materia to that of Section 433 of the Act, 2013 and also employs the phrase “as far as may be”. In discussing the meaning of this expression, this Court pointed out that due to the existence of Section 238-A, the provisions of the Act, 1963, including that of Section 5, would apply to proceedings or appeals instituted under the IBC, 2016. In other words, the NCLT, NCLAT, DRT and DRAT respectively, could exercise their discretion to extend time insofar as the IBC, 2016 is concerned. The relevant observations are thus: “56.For the sake of convenience, and to avoid prolixity and unnecessary repetition, all the aforesaid issues are dealt with together. Section 238-A IBC provides that the provisions of the Limitation Act shall, as far as may be, apply to proceedings before the adjudicating authority (NCLT) andNclat. 57.It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court inB.K. Educational Services (P) Ltd.v.Parag Gupta & Associates[B.K. Educational Services (P) Ltd.v.Parag Gupta & Associates, (2019) 11 SCC 633 : (2018) 5 SCC (Civ) 528] NCLT/Nclathas the discretion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation.” (Emphasis supplied)

92. However, suppose the concerned provision already provides that delay can only be condoned within a maximum outer-limit, then such an outer-limit would have to be harmoniously read with the expression “as far as may be” to curtail the power to exercise discretion in condoning delay within that outer-limit.

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93. In the absence of any legislative intent being evident in the form of (a) or (b), it would not be proper for us to take the view that the principles underlying Section 5 must apply to such bodies, even by analogy. The argument that the principles underlying Sections 6 or 14 of the Act, 1963 respectively, could be applied to quasi-judicial bodies is not sufficient reason to hold the same insofar as Section 5 of the Act, 1963 is concerned.

ii. The decision of this Court in International Asset Reconstruction Company of India Limited.

94. As indicated by us in the preceding paragraphs, whether the provisions of the Act, 1963 stand excluded and more particularly, whether there is an embargo on the application of Section 5 of the Act, 1963 must be examined conscientiously, keeping in mind the overall scheme of the Act in question and the intention of the legislature. The decision of a three-judge bench of this Court in International Asset Reconstruction Company of India Limited v. Official Liquidator of Aldrich Pharmaceuticals Limited and Others reported in (2017) 16 SCC 137 has shed light on how such an exercise is to be conducted. It dealt with the application of Section 5 of the Act, 1963 to an appeal before the Debt Recovery Tribunal (hereinafter, the “DRT”) under Section 30 of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter, the “Act, 1993”).

95. It would be apposite to mention that Section 24 of the same Act read as follows: “The provisions of the Limitation Act, 1963 (36 of 1963), shall, as far as may be, apply to an application made to a Tribunal.” Upon a cursory reading of the aforesaid Section 24, one might assume that it is similar to that of Section 433 of the Act,

2013. However, a deeper analysis would reveal that while Section 433 of the Act, 2013 applies to “proceedings or appeals” before the NCLT or the NCLAT, Section 24 of the Act, 1993 applies only to an “application” made before the DRT. This was a crucial point of difference which proved to be instrumental to the issue with which International Asset Reconstruction Company (supra) was faced with, because it related to an ‘appeal’ and not an application made before the DRT.

96. Since the general rule is that the Act, 1963 would not apply to quasi-judicial bodies or tribunals, unless expressly specified, this Court turned its attention to any indication within the statute which

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could signal that Section 5 of the Act, 1963 was intended to be applied to ‘appeals’ made before the DRT as well. In doing so, it was observed thus: “13.The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery Officer therefore cannot be condoned by application of Section 5 of the Limitation Act.” (Emphasis supplied)

97. It was observed that the power as regards condonation of delay was given to the DRT via Section 24 only when an original ‘application’ was made under Section 19 of the said Act and to the Appellate Tribunal via Section 20(3) when an appeal was made before it under Section 20. On the contrary, insofar as ‘appeals’ made to the DRT under Section 30 were concerned, it was held that the exclusion of Section 5 of the Act, 1963 was manifestly express.

98. The decision in International Asset Reconstruction Company (supra) furthers the proposition which has been well-cemented over the years that, one must carefully inspect and scrutinise the scheme of the Act and the intention of the legislature before conferring the power to extend time or condone delay to quasi-judicial bodies or tribunals. The exercise must be rooted in vigilance and not haste.

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iii. Whether the CLB Regulations confer any discretionary power to the CLB to extend time or condone delay under Section 5 of the Act, 1963?

99. In the facts and circumstances of the present case, the CLB seems to have traced its power to condone delay/extend time to Regulation 44 of the CLB Regulations. However, it is the submission of Ms. Nariman that the said regulation which saves the inherent powers of the CLB cannot be used to allow the circumvention of the mandatory time-limit prescribed for filing an appeal under Section 58 of the Act,

2013. Regulation 44 reads thus: “44. Saving of inherent power of the Bench – Nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the Bench to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Bench.”

100. It is well-established that although the exercise of inherent powers are in addition to the powers specifically conferred on the concerned body or institution, yet such an exercise of power must be complementary to and not be in conflict with any express provision or be contrary to the intention of the legislature. It is only when a provision is silent as regards some procedural aspect that the inherent power can come to the aid of the parties. One must be careful in ascertaining when there is an unintentional silence and when there exists a deliberate omission.

101. Moreover, this Court in Prakash H. Jain (supra) has already unequivocally stated that there cannot be any inherent power to extend the period of limitation prescribed for the filing of any appeal or application.

102. One could argue that it is the same inherent power which is exercised by a quasi-judicial body or tribunal when it applies the principles underlying Section 14 of the Act, 1963. However, as we have already explained, the principles underlying Sections 5 and 14 of the Act, 1963, could not be said to be on the same footing.

103. With respect to the issue with which we are concerned, we have already established that when the legislature has intended for a quasi-judicial body or a tribunal to apply the provisions of the Act, 1963, more particularly, confer the power of ‘extension of time’, they

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have indicated the same in some way or the other, in an express manner. Regulation 44 cannot be resorted to in order to confer a power upon the CLB which the legislature in their wisdom did not intend to confer.

104. To buttress this line of reasoning further, let us look at Regulations 25 and 43 of the CLB Regulations respectively: “25. Hearing of petition – The Bench may, if sufficient cause is shown at any stage of the proceeding grant time to the parties or any of them and adjourn the hearing of the petition or the application. The Bench may make such order as it thinks fit with respect to the costs occasioned by such adjournment. -xxx-

43. Enlargement of time – Where any period is fixed by or under these regulations or granted by a Bench, for the doing of any act, or filing of any documents or representation, the Bench, may, in its discretion, from time to time, enlarge such period, even though the period fixed by or under these regulations or granted by the Bench may have expired.”

105. Regulation 25 deals with the discretion given to the CLB to grant additional time on an altogether different aspect. It deals with granting time, upon showing that sufficient cause existed, for the ‘adjournment’ of a hearing of the petition or application, as the case may be. One must not conflate this with the power to enlarge or extend time for the filing of the petition or application itself with is dealt with by the Act, 2013.

106. This is precisely why Regulation 43 which deals with the enlargement of time has also carefully used the words “Where any period is fixed by or under these regulations or granted by a Bench…”. This makes it clearly evident that the discretion to enlarge time which is dealt with under the CLB Regulations pertain to those aspects which are dealt with under the CLB Regulations only or those otherwise granted by the Bench. They have no relation whatsoever with the prescribed period of limitation which governs the filing of the appeal or application under the Act, 2013 or its extension.

107. This discussion again goes to substantiate the view that, when the question is as regards the “extension of time” in the filing of an

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appeal or application itself, before a quasi-judicial body, we must be careful to not overread between the silences and instead, must look at whether there is any express indication to that effect. Whenever and wherever the legislature deemed it fit, it has granted either a limited or an unlimited power to extend time.

d. How Section 58(3) of the Act, 2013 which is a simpliciter provision prescribing a limitation period, must be construed.

108. Section 58 of the Act, 2013 under which provision the respondent herein filed an appeal before the CLB, is reproduced as thus: “58. Refusal of registration and appeal against refusal.— (1) If a private company limited by shares refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any securities or interest of a member in the company, it shall within a period of thirty days from the date on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transfer or and the transferee or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal. (2) Without prejudice to sub-section (1), the securities or other interest of any member in a public company shall be freely transferable: Provided that any contract or arrangement between two or more persons in respect of transfer of securities shall be enforceable as a contract. (3) The transferee may appeal to the Tribunal against the refusal within a period of thirty days from the date of receipt of the notice or in case no notice has been sent by the company, within a period of sixty days from the date on which the instrument of transfer or the intimation of transmission, as the case may be, was delivered to the company. (4) If a public company without sufficient cause refuses to register the transfer of securities within a period of thirty

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days from the date on which the instrument of transfer or the intimation of transmission, as the case may be, is delivered to the company, the transferee may, within a period of sixty days of such refusal or where no intimation has been received from the company, within ninety days of the delivery of the instrument of transfer or intimation of transmission, appeal to the Tribunal. (5) The Tribunal, while dealing with an appeal made under sub-section (3) or sub-section (4), may, after hearing the parties, either dismiss the appeal, or by order— (a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within a period of ten days of the receipt of the order; or (b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved. (6) If a person contravenes the order of the Tribunal under this section, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.”

109. Section 58(1) of the 2013 Act deals with a scenario wherein, a private company limited by shares, refuses to register the transfer or the transmission of the right to any securities or the interest of a member in the company, in favour of the transferee. This refusal may be in pursuance of any power of the company under its articles or otherwise. Such a refusal by the company must be made within a period of thirty days from the date on which the instrument of transfer or the intimation of such transmission, was delivered to the company. This refusal must be in the form of a reasoned notice, made either to the transferor and the transferee, or to the person giving intimation of the transmission to the company.

110. Section 58(3) is of particular significance to the present matter. It discusses the mechanism which must be adopted or the further course of action available to a transferee who is aggrieved by the decision of private company refusing to register the transfer or transmission of shares. According to Section 58(3), the transferee has to prefer

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an appeal before the NCLT (or the CLB during the period between 12.09.2013 and 01.06.2016) against the refusal of the company, within a period of thirty days from the date of receipt of the notice of refusal. In case no notice of refusal has been sent by the company, then the transferee has to prefer an appeal within a period of sixty days from the date on which the instrument of transfer or intimation of transmission was delivered to the company.

111. The entire question of how a particular provision of a special statute must be construed, for the purposes of limitation, directly arises as a consequence of the savings provision in the Act, 1963, which reads thus: “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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”

112. Section 29(2) states that, if any special or local law prescribes a certain period of limitation for any suit, appeal or application, as the case may be, which is different from that of the Schedule to the Act, 1963, then it is that period of limitation under the special or local law which must be looked into and not those periods which are prescribed under the Schedule to the Act, 1963. Through a deeming fiction, the period prescribed under that special or local law is considered to be that which is prescribed under the Schedule to the Act, 1963 for the purpose of application of Section 3 of the Act, 1963.

113. Moving further, apart from ascertaining what would be the prescribed period of limitation, more often than not, the question is also whether Section(s) 4 to 24 (both inclusive) of the Act, 1963 could be made applicable to that specific provision in the special or local law. For this purpose, one must examine whether the special or local law expressly excludes the application of Sections 4 to 24 of the Act, 1963.

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114. For example, take Section 34(3) of the Arbitration and Conciliation Act, 1996 with which this Court in Consolidated Engineering (supra) was concerned with. Ms. Arora has also laid particular emphasis on Section 34(3) of the Arbitration and Conciliation Act, 1996 to drive home her submission that there is no indication under Section 58(3) of the Act, 2013 which expressly excludes the application of Section 5 of the Act, 1963. Therefore, we deem it fit to explain the rationale underlying our reasoning using the same provision and it is reproduced as follows: “(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.” (Emphasis supplied)

115. In the said provision, the prescribed period of limitation for filing an application to set aside an arbitral award is three months. Therefore, if looked at from the lens of Section 29(2) of the Act, 1963, it would mean that instead of applying Article 137 of the Schedule to the Act, 1963 which prescribes a three-year limitation period, one must give priority to the period so specifically prescribed by the legislature under the special act, which is three months.

116. The proviso to Section 34(3) then states that, upon sufficient cause being shown, the application to set aside an arbitral award could be entertained within a further period of thirty days but not thereafter. In light of the language used, what then has to be determined is whether any provision within Sections 4 to 24 of the Act, 1963 was expressly excluded.

117. A reading of the proviso to Section 34(3) reveals that the application of Section 5 of the Act, 1963 has been restricted or rather, curtailed to

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an outer-limit of thirty days by the use of the phrase “within a further period of thirty days but not thereafter”. In other words, in Section 34(3) of the Arbitration and Conciliation Act, 1996, Section 5 of the Act, 1963 which pertains to extension of time upon the showing of sufficient cause, is only applicable to a limited extent and is confined to that thirty-day additional period. The same was buttressed in the decision of this Court in Simplex Infrastructure Limited v. Union of India reported in (2019) 2 SCC 455.

118. However, insofar as Section 14 of the Act, 1963 was concerned, this Court in Consolidated Engineering (supra) held that it has not been expressly excluded by Section 34(3) of the Arbitration and Conciliation Act, 1996 and could apply to its fullest extent i.e., even without any outer-limit.

119. What the aforesaid example indicates is that the question of whether a certain provision in a special or a local law expressly excludes the provisions of Section 4 to 24 of the Act, 1963 arises only in pursuance of the savings provision under Section 29(2) of the Act, 1963. As a natural corollary, if Section 29(2) is, by itself, inapplicable to a particular case then there would be no need to look into or analyse whether there is any express exclusion.

120. This Court in Ganesan (supra) has unequivocally held that Section 29(2) of the Act, 1963 only relates to those provisions in the special or local law which deal with suits, applications or appeals, which are to be filed before a ‘court’. Therefore, when a special or a local law deals with the filing of a suit, application or appeal, as the case may be, before quasi-judicial bodies or tribunals, the savings provision in Section 29(2) of the Act, 1963 does not have any relevance. The relevant observations are reproduced hereinbelow: “60.1.The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a court. 60.2.Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the 1959 Act is not entitled to condone

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the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act.” (Emphasis supplied)

121. M.P. Steel (supra) had also indicated that which was subsequently laid down in Ganesan (supra) and stated that the special or local law referred to in Section 29(2) of the Act, 1963 must concern itself with a suit, application or appeal of the nature described in the Schedule to the Act, 1963 i.e., those that are filed before ‘courts’. Therefore, Section 29(2) would not get attracted when the suit, application or appeal referred to in the special law relates to those which are made before quasi-judicial bodies. The relevant observations are thus: “33. […] 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.[…]” (Emphasis supplied)

122. In the example which we had discussed, the provision in the special law i.e., Section 34(3) of the Arbitration and Conciliation Act, 1996, was one which dealt with an application to be made before a ‘court’. It fell within the scope of Section 29(2) of the Act, 1963 and therefore, one could indulge with the aspect of express exclusion with respect to Section 34(3) of the Arbitration and Conciliation Act, 1996.

123. In the present case, we need not undertake any exhaustive examination as to whether Section 58(3) of the Act, 2013 expressly excludes the application of Section 5 of the Act, 1963 because of the non-application of Section 29(2) of the Act, 1963. The non-application

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of Section 29(2) of the Act, 1963 is in turn owing to Section 58(3) of the Act, 2013 being concerned with an appeal which is to be made before a quasi-judicial body and not before a ‘court’.

124. The general rule as regards any appeal or application filed before a ‘court’ is that the provisions of the Act, 1963 would apply, unless indicated otherwise. This is precisely why one enters into the debate of “express exclusion”. However, the reverse is the general rule insofar as quasi-judicial bodies or tribunals are concerned i.e., that the provisions of the Act, 1963 do not apply, unless indicated otherwise. Therefore, the focus would shift to whether there is any “express inclusion” rather than an “express exclusion”. An exception to this shift in focus, or in other words, a reason why one would still look at whether sections 4 to 24 of the Act, 1963 is “expressly excluded” is when the argument that the principles underlying certain provisions of the Act, 1963, like Section 6 or 14 must be made applicable to quasi-judicial bodies, succeeds or is being considered. This was the situation in Parson Tools (supra) and M.P. Steel (supra). However, we have assigned elaborate reasons as to why we are not inclined to apply the principles underlying Section 5 of the Act, 1963 to quasi- judicial bodies or tribunals. Therefore, there arises no occasion for us to explore this aspect of express exclusion.

125. In light of the aforesaid, we find no merit in the submission put forth by Ms. Arora that even before the coming into force of Section 433 of the Act, 2013, there was no express exclusion of the provisions of the Act, 1963 and therefore, the CLB could be said to have the power under Section 5 of the Act, 1963 to condone the delay in preferring the appeal under Section 58(3) of the Act, 2013. The absence of express exclusion, by itself, cannot be said to have conferred the CLB with the power to condone delay.

126. Having said the above, the next question which arises is regarding how the simpliciter limitation period prescribed under Section 58(3) of the Act, 2013, must be construed? To answer this, we find it apposite to bring forth certain observations made by this Court in Fairgrowth Investments Ltd v. Custodian reported in (2004) 11 SCC 472. The relevant observations are thus: “9.We are of the view that the provision prescribing a time- limit for filing a petition for objection under Section 4(2) of the Act is mandatory in the sense that the period prescribed

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cannot be extended by the court under any inherent jurisdiction of the Special Court. Prescribed periods for initiating or taking steps in legal proceedings are intended to be abided by, subject to any power expressly conferred on the court to condone any delay. Thus the Limitation Act, 1963 provides for different periods of limitation within which suits, appeals and applications may be instituted or filed or made as the case may be. It also provides for exclusion of time from the prescribed periods in certain cases, lays down bases for computing the period of limitation prescribed and expressly provides for extension of time under Section 5 in respect of certain proceedings. If the periods prescribed were not mandatory, it was not necessary to provide for exclusion or extension of time in certain circumstances nor would the method of computation of time have any meaning. 10.Section 4(2) of the Act plainly read simply requires a person objecting to a notification issued under sub-section (2) of Section 3 to file a petition raising such objections within 30 days of the issuance of such notification. The words are unequivocal and unqualified and there is no scope for reading in a power of court to dispense with the time-limit on the basis of any principle of interpretation of statutory provisions. InR. Rudraiahv.State of Karnataka[(1998) 3 SCC 23] it was contended on behalf of the appellants that Section 48-A of the Karnataka Land Reforms Act, 1961 which provided for the making of an application within a particular period should be construed liberally in favour of tenants so that the period was to be read as extendable. The submission was rejected on the ground that the language of Section 48-A was unambiguous and could not be interpreted differently only on the ground of hardship to the tenants. 11.The mere fact that the Special Court may have been imbued with the same status of a High Court would not alter the situation. We are of the view that it was not necessary for Section 4(2) of the Act to use additional peremptory language such as “but not thereafter” or “shall” to mandate that an objection had to be made within 30

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127. What we understand from the aforesaid observations in Fairgrowth (supra), is that:

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i. First, the prescribed periods for the initiation or taking of any steps in pursuance of legal proceedings, even insofar as the traditional civil courts are concerned, are generally intended to be abided by. If in case all prescribed periods were not mandatory and only directory, then there would have been no necessity to provide for the exclusion or the extension of time under the Act, 1963 under certain circumstances and the method of computation of time would also not have any meaning. ii. Secondly, it is only after considering the mandatory nature of the prescribed periods that the civil court is empowered under Section 5 of the Act, 1963 to condone delay. If the said provision were not present then even civil courts would not have had the power to condone delay. Hence, any quasi-judicial body or tribunal which otherwise does not fall within the ambit of Section 5 of the Act, 1963 and which is also not specifically empowered to condone delay, cannot extend time under the notion that the prescribed period is only directory. iii. Thirdly, when the provision, in a plain, unequivocal and unqualified manner, states that something must be done within a said period of time, there would be no scope to read in any ancillary power to dispense with the said time-limit. The existence of any additional pre-emptory language in the form of “but not thereafter” or “shall” would not be necessary to convey the mandate of the prescribed period. iv. Lastly, the mere use of the word “may”, in all situations, would not indicate that a period prescribed is merely directory. In a lot of contexts, the word “may” has been used to indicate the option available to a certain person to file an application, appeal or objection. To put it simply, it could just signify that someone would be enabled or empowered to do something.

128. Section 58(3) of the Act, 2013 uses the expression “The transferee may appeal to the Tribunal”. As elucidated in Fairgrowth (supra), we are also of the view that the use of this word does not directly give rise to any inference that the limitation period prescribed therein is only directory.

129. Therefore, the respondent herein must have preferred his appeal under Section 58(3) of the Act, 2013 before the CLB, strictly within the time-limit prescribed therein.

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III. Whether Section 433 of the Act, 2013 must be made retrospectively applicable or the change in law during the pendency of the appeal must be taken into account in the facts and circumstances of the present case?

130. As indicated previously, Section 433 of the Act, 2013 was brought into force w.e.f 01.06.2016 i.e., from the same date on which the NCLT and the NCLAT respectively came to be constituted. In the phased manner of implementation of the provisions of the Act, 2013, such a decision to time the coming into force of Section 433 in a way that coincides with the creation of the NCLT and NCLAT respectively, was clear and conscious. This, by itself, is a good indication to steer away from the retrospective application of Section 433 in favour of the CLB.

131. Further, in the course of our initial discussion on whether the provisions of the Act, 1963 could, per say, be said to apply to quasi-judicial bodies, we had also indicated that the jurisprudence surrounding the application of the Act, 1963 is body/institution specific. In other words, the first step in approaching all such matters is to see whether the concerned body could be said to be a ‘civil court’ or not. If answered in the negative, then the endeavour is to figure out whether that body has been specifically empowered to apply the provisions of the Act,

1963. The general rule insofar as quasi-judicial bodies or tribunals are concerned, is that the provisions of the Act, 1963 do not apply unless indicated otherwise. Therefore, “express inclusion” as we had indicated earlier, must be present.

132. It is in this background that we are of the view that Section 433 which empowers the NCLT and the NCLAT respectively to apply the provisions of the Act, 1963, as far as may be, to proceedings and appeals before itself, cannot be borrowed to signify the existence of a similar power with respect to the CLB. Although much of what the CLB was doing earlier is being done by the NCLT presently, both are different bodies, created at different times and endowed with different powers.

133. We had also contemplated on whether the period between 12.09.2013 and 01.06.2016 should be treated differently and whether the powers exercised by the NCLT by virtue of Section 433 of the Act, 2013 must be extended to the CLB during this specific window of time. However, the scheme of the Act, 2013 and the manner in which it was implemented leaves no room for such an interpretation. It was fairly

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clear that it was the CLB which would function as the adjudicating authority in respect of several matters during this period until the NCLT was created and there remained no confusion on whether the CLB’s powers had been enhanced in any manner or not.

134. In B.K. Educational Services Private Limited v. Parag Gupta and Associates reported in (2019) 11 SCC 633, the question admittedly related to the retrospective application of Section 238-A of the IBC, 2016 which provision was pari materia to Section 433 of the Act, 2013. However, the background in which it was raised was altogether different.

135. The issue in B.K. Educational Services (supra) was whether Section 238-A of the IBC, 2016 (pari materia to Section 433 of the Act, 2013) which was inserted through the Amendment Act of 2018 with effect from 06.06.2018 could be said to have retrospective application from the date of commencement of the IBC, 2016 i.e. from 01.12.2016. In examining the reason behind the introduction of Section 238-A, it was culled out that the legislature had always intended for the Act, 1963 and the rules of limitation to apply to the IBC, 2016, especially with respect to the applications filed under Sections 7 and 9 of the IBC, 2016 respectively. In other words, the issue therein related to the retrospective application of the provision of an amending Act which was clarificatory in nature.

136. It is also of note that in B.K. Educational Services (supra), in the period between 01.12.2016 and 06.06.2018 i.e., the period for which retrospective application was sought, it was still the NCLT that was hearing applications under Sections 7 and 9 of the IBC, 2016 respectively. To put it simply, it was not a case wherein a different body was adjudicating the applications filed under Sections 7 and 9 respectively during 06.06.2018 and 01.12.2016. The issue was simple – when the NCLT was explicitly empowered to apply the provisions of the Act, 1963 on and after 06.06.2018 by way of Section 238-A of the IBC, 2016, could it be said that the NCLT also would have been empowered to apply the Act, 1963 before 06.06.2018?. This was what was answered in the affirmative.

137. Moreover, one another significant aspect in B.K. Educational Services (supra) was that, as on 01.06.2016, the NCLT was already empowered under Section 433 of the Act, 2013 to apply the provisions of the Act, 1963. This power of the NCLT was said to apply even

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when the NCLT decided applications under Sections 7 and 9 of the IBC, 2016 respectively. The same is evident from the observation in B.K. Educational Services (supra) that – “Given the fact that the “procedure” that would apply to NCLT would be the procedure contained inter alia in the Limitation Act, it is clear that NCLT would have to decide applications made to it under the Code in the same manner as it exercises its other jurisdiction under the Companies Act.“

138. In light of all these differences, any reliance on B.K. Educational Services (supra) to further the argument that Section 433 of the Act, 2013 must be applied to the CLB, would be unfounded.

139. This issue may be viewed at from one another angle. It is no more res integra that limitation being a procedural law, a change in law in that regard applies retrospectively. However, this general principle has certain exceptions – (a) the new law of limitation providing for a longer period cannot revive a dead remedy and, (b) the new law of limitation cannot suddenly extinguish a vested right of action by providing for a shorter period of limitation.

140. Some pertinent observations in this regard was made by the decision of this Court in Thirumalai Chemicals Limited v. Union of India and Others reported in (2011) 6 SCC 739 and the same is reproduced as follows: “Law of limitation 29.Law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. On expiry of the period of limitation, the right to sue comes to an end and if a particular right of action had become time-barred under the earlier statute of limitation the right is not revived by the provision of the latest statute. Statutes of limitation are thus retrospective insofar as they apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier, but they are prospective in the sense that they neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have the effect of extinguishing a right of action subsisting on

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that date. Bennion onStatutory Interpretation, 5th Edn. (2008), p. 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. -xxx- 32.Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which is procedural and a right which is not to be taken away pleading retrospective operation unless a contrary intention is discernible from the statute. Therefore, unless the language clearly manifests in express terms or by necessary implication, a contrary intention a statute divesting vested rights is to be construed as prospective.” (Emphasis supplied)

141. What is therefore evident is that, if the retrospective application of a procedural law, including that of limitation, affects or divests vested rights, the general rule that procedural law must be given retrospective effect, could be deviated from. In such cases, giving prospective effect may be favoured even if the matter pertains to limitation. However, if no such vested right could be said to exist, then giving retrospective effect is the way to go.

142. In Thirumalai Chemicals (supra), the cause of action arose when the Foreign Exchange Regulation Act, 1973 (hereinafter, the “FERA”) was in force, but the impugned orders were issued when the Foreign Exchange Management Act, 1999 (hereinafter, the “FEMA”) was in force. The difference in the two regimes insofar as the limitation period for filing an appeal was concerned was that, in the former regime, the prescribed period of limitation was 45 days and delay could be

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condoned upon sufficient cause being shown for an additional period of 90 days. In the latter regime, the prescribed period of limitation was 45 days and delay could be condoned upon sufficient cause being shown without any outer-limit. The appeal therein was admittedly belated. The issue related to whether the power to condone delay under the old regime or the new regime must be looked at.

143. In Thirumalai Chemicals (supra), this Court applied the provisions of the new regime based on the general principle that matters of procedure, including limitation, are to be given retrospective effect. Moreover, since the impugned orders were issued when the new regime was already in force, there was no vested right which accrued to the opposite party to plead any time bar in filing the appeal based on the old regime. In other words, the opposite party did not have any vested right to claim that delay could not be condoned beyond a period of 90 days as laid out in the old regime.

144. The facts and circumstances of the present case are slightly different from that in Thirumalai Chemicals (supra). As aforementioned, the newer law of limitation which is applicable to the matter cannot revive a dead remedy. In the facts of our case, the appellant company issued its notice refusing to register the transmission of shares on 30.04.2013 i.e., during a time when the regime under the Erstwhile Act was in vogue. More specifically, it was Section 111(2) r/w Section 111(3) of the Erstwhile Act which governed the field. According to those provisions, the respondent herein must have preferred an appeal before the CLB within a period of two months from the date of the notice of refusal i.e., before 30.06.2013. It is not in dispute that the respondent failed to file such an appeal before 30.06.2013. There existed no power to condone delay with the CLB during this period. Therefore, the remedy under Section 111(2) r/w Section 111(3) of the Erstwhile Act was already dead, much before the coming into force of Section 58 of the Act, 2013 on 12.09.2013 let alone the coming into force of Section 433 of the Act, 2013 on 01.06.2016.

145. Hence, in such a scenario, it would not be permissible for one to say that the power to condone delay which has been given to the NCLT beginning from 01.06.2016 must enure to the benefit of an appeal which had become time-barred much before the commencement of the Act, 2013. If such an argument is accepted then it would have the consequence of affecting vested rights.

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146. In light of the aforesaid, we do not wish to engage in any further discussion on whether the change in law due to the coming into force of Section 433 of the Act, 2013 had any bearing on the present case.

147. Before we conclude, we deem it appropriate to discuss certain decisions of this Court and of the Calcutta High Court, upon which the impugned decision had placed considerable reliance.

148. First, is the decision of a three-judge bench of this Court in Canara Bank (supra) which dealt with whether the CLB could be considered to be a ‘civil court’ for the purposes of Section 9-A of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 (hereinafter, the “Act, 1992”). Interestingly, this question was also raised in the background of Section 111(2) r/w Section 111(3) of the Erstwhile Act (now Section 58(3) of the Act, 2013). Therein, if the CLB was to be considered a ‘civil court’ for the purposes of Section 9-A of the Act, 1992, then its jurisdiction vis-à-vis a suit, claim or other legal proceeding that overlapped with those under the purview of the Special Court, would be affected. In other words, those matters could be transferred from the CLB to the Special Court.

149. Keeping in view the object of the Act, 1992, this Court thought it appropriate to attribute a wider meaning to the word ‘civil court’ used in Section 9-A to encompass not only the traditional courts of civil judicature but all bodies, both courts and tribunals, which act judicially to deal with matters and claims. This interpretation was tailored in light of the mischief which was sought to be curtailed and the remedy sought to be advanced by the Act, 1992.

150. Therefore, the decision in Canara Bank (supra) was very specific to the Act, 1992 and was given in the context of the peculiar legal issue involved therein i.e., transfer of proceedings from the CLB to the Special Court. This decision cannot come to the aid of the respondents for the proposition that the CLB must also be considered to be a ‘court’ for the purposes of the Act, 1963 and more specifically, for the purpose of condonation of delay/extension of time.

151. Secondly, the impugned decision has also placed considerable reliance on the Division Bench decision of the Calcutta High Court in Nupur Mitra (supra). Therein, the CLB was faced with an application under Section 111(4) of the Erstwhile Act for the rectification of the register (corresponding to Section 59 of the Act, 2013) and was not

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dealing with an appeal against the refusal to register the transfer or transmission of shares under Section 111(2) r/w Section 111(3) of the Erstwhile Act (corresponding to Section 58 of the Act, 2013).

152. This difference is crucial because under Section 111(4) of the Erstwhile Act and Section 59 of the Act, 2013, there is no period of limitation which has been prescribed by the legislature. In other words, the making of an application for the rectification of register under both the Erstwhile Act and the Act, 2013 is not bound by a specific time- limit. On the other hand, under Section 111(2) r/w Section 111(3) of the Erstwhile Act and Section 58(3) of the 2013, Act, there is a specific period within which an appeal against the refusal to register the transfer or transmission of shares has to be filed before the CLB or the NCLT.

153. We are not concerned with an appeal made under Section 59 of the Act, 2013 for the rectification of the register which has no prescribed period of limitation. Rather our focus is on Section 58 of the Act, 2013 under which the legislature has specified a particular time period within which an appeal must be preferred. Therefore, on this aspect alone, we are of the view that the observations of the Calcutta High Court in Nupur Mitra (supra) as regards limitation are of no relevance to the present matter.

154. Even otherwise, the decision in Nupur Mitra (supra) did not conclusively hold that the Act, 1963 would apply to an application for the rectification of register under Section 111(4) of the Erstwhile Act. It was stated that – “Assuming that the Limitation Act, 1963 does apply, in the absence of a specific provision covering applications under section 111, the residuary article namely Article 137 would apply. If the cause of action arose in 1996 as claimed by the appellants, the application under section 111 having been filed in 1998 would be within time.” This was also observed in light of the fact that, irrespective of whether the Act, 1963 applied or not, the conclusion was that the application under Section 111(4) therein was not time-barred. Therefore, we are not persuaded by the respondent’s reliance on the observations made in Nupur Mitra (supra).

155. It was under such circumstances that this Court in Basubani Private Ltd. and Anr v. Nupur Mitra and Ors. (Civil Appeal Nos. 5063- 5064 of 1999) considered it appropriate to not interfere with the observations made in Nupur Mitra (supra).

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156. Lastly, considerable reliance was also placed on the decision of a Single Judge of the Calcutta High Court in Mackintosh (supra) wherein it was stated that although Section 58(4) of the Act, 2013 prescribes a certain time-limit within which an appeal must be filed, yet nothing could be said to prevent the CLB from receiving the appeal thereunder beyond the stipulated period. The reasoning underlying the said conclusion was two-fold – (a) it is judicially recognised that the principles contained in the Act, 1963 would be applicable to the matters before the CLB and, (b) the provision does not explicitly prohibit the receipt of an appeal thereunder after the expiry of the time-limit indicated therein. Insofar as the aforesaid two-pronged reasoning is concerned, we have already explained as to how the principles underlying Section 5 of the Act, 1963 stand on a different footing and also that the use of any additional pre-emptory language should not always be a requirement to read the prescribed period of limitation as mandatory. Therefore, we are unable to agree with the views expressed in Mackintosh (supra).

157. The decision in Mackintosh (supra) was challenged by way of an SLP before this Court in Mackintosh Burn Ltd. v. Sarkar and Chowdhury Enterprises Private Limited reported in (2018) 5 SCC

575. However, the main issue canvassed was whether the High Court must have decided the other questions of law which was raised in the statutory appeal, apart from the question of limitation. This Court answering in the affirmative stated that the High Court must have considered all the grounds taken by the appellant justifying their refusal to register the shares in favour of the respondent and not restricted itself to the sole question of whether the CLB could have received the appeal under Section 58(4) beyond the prescribed period therein. By observing so, this Court had answered certain other questions of law and remanded the matter to the NCLT for a decision on merits.

158. While remanding the matter, this Court did not explicitly express any agreement with the position as regards the power of the CLB to condone delay taken in Mackintosh (supra).

159. Ms. Nariman had also made certain submissions on the question whether the proceedings under Section 58(3) of the Act, 2013 are original proceedings in the nature of a suit or not, particularly because neither Section 5 of the Act, 1963 nor its principles could apply to proceedings which are of an original nature. However, having already

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reached the conclusion that neither Section 5 of the Act, 1963 nor its underlying principles could be said to be applicable to an appeal filed before the CLB under Section 58(3) of the Act, 2013 owing to it being a quasi-judicial body which has not been empowered to extend time or condone delay, there arises no need for us to address this additional submission.

G. CONCLUSION

160. A conspectus of the legal and factual discussion on the power of the CLB to extend time or condone delay under Section 58(3) of the Act, 2013 is as follows: i. The appeal under Section 58(3) of the Act, 2013 preferred by the respondent herein was filed during the period between 12.09.2013 and 01.06.2016. Therefore, although the appeal was made under the new provision of the Act, 2013, yet the body/forum before which it was made i.e., the CLB, was one constituted under the provisions of the Erstwhile Act. According to Section 10E(4C) of the Erstwhile Act, the CLB was a court only in the restricted sense. There existed no express provision which empowered the CLB to apply the provisions of the Act, 1963 to the proceedings and appeals before itself. ii. In multiple decisions of this Court, notable and significant emphasis has been placed on which institution/body is seeking to employ the provisions of the Act, 1963 or exercise the powers conferred under the Act, 1963. iii. The provisions of the Act, 1963 (provisions that lay down a prescribed period of limitation as well as Sections 4 to 24 of the Act, 1963 respectively) would only apply to suits, applications or appeals, as the case may be, which are made under any law to ‘courts’ and not to those made before quasi-judicial bodies or tribunals, unless such quasi-judicial bodies or tribunals are specifically empowered in that regard. iv. In Officer on Special Duty (supra), Prakash H. Jain (supra) and Om Prakash (supra) respectively, this Court has unequivocally held that the power to extend time under Section 5 of the Act, 1963 cannot be resorted to by statutory authorities, quasi-judicial bodies or tribunals, unless expressly indicated. It has been clarified that when such authorities or bodies are deemed to be

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a court for certain limited or specified purposes, such a legal fiction must not be extended beyond the purpose for which the fiction was created so as to confer powers under Section 5 of the Act, 1963 as well. v. In Parson Tools (supra) and M.P. Steel (supra) respectively, this Court has developed a body of jurisprudence indicating that the principles underlying Section 14 of the Act, 1963 could be applied to the provisions relating to quasi-judicial bodies, unless there is any express indication to the contrary in the wording and scheme of the said provision. However, there exists a vital distinction between the principles underlying Sections 5 and 14 respectively. vi. The differences between the principles underlying Sections 5 and 14 of the Act, 1963 respectively are as follows - First, one pertains to the exercise of a discretionary power vested in the courts and the other is a mandatory provision independent of any exercise of discretion; Secondly, one refers to “sufficient cause” which term by itself is subject to a good amount of elasticity and the other has delineated well-defined conditions which must be met; and Lastly, one deals with the extension of time while the other is concerned with the exclusion of time. vii. The principles underlying Sections 5 and 14 of the Act, 1963 respectively, cannot be analogously applied to proceedings before quasi-judicial bodies because in the former, the courts exercise their discretion in extending and more specifically, adjusting the prescribed period of limitation itself to create a fresh period of limitation. No entitlement as a matter of right arises vis-à-vis extension of time. Whereas, in the latter, the prescribed period of limitation remains intact, no delay is attributed to the litigant and the time during which the abortive proceeding was being prosecuted is expunged in the eyes of the law to place the litigant back or restore his position within the prescribed period of limitation wherein he is entitled to file the appeal or application, as the case may be, as a matter of right. viii. The mechanism envisaged under Section 5 is proximally bound and tethered to the discretion with which a civil court is empowered and that under Section 14 is anchored on restoring the right of a litigant to institute an appeal or application, as the

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case may be, within the prescribed period of limitation. Both provisions work in the interest of the litigant and seek to further the cause of substantive justice, however, the kind and nature of the power exercised under the two provisions, as well as the mechanism envisaged therein, are quite distinct. ix. Moreover, the principles underlying Sections 5 and 14 of the Act, 1963 respectively also stand on a different footing for the reason that when the legislature has intended to grant powers of extension of time, the same has been expressly indicated either through the manner in which the concerned provision is phrased (more often than not through a proviso) or by the adoption of the Act, 1963 through a separate provision to the special law as a whole (akin to Section 433 of the 2013, Act). x. Therefore, the decision of this Court in M.P. Steel (supra) would not apply analogously to a situation when the principles underlying Section 5 of the Act, 1963 are sought to be applied by quasi-judicial bodies which aren’t empowered in that regard. xi. Regulation 44 of the CLB Regulations which saves the inherent power of the CLB would not enable the CLB to extend time for the filing of the appeal or the application itself, as the case may be. xii. In Ganesan (supra), it has been settled that the savings provision in the Act, 1963 i.e., Section 29(2), is of no relevance when the special or local law deals with a suit, appeal or application, as the case may be, which is to be filed before a quasi-judicial body. The question whether a certain provision in a special or a local law expressly excludes the provisions of Sections 4 to 24 of the Act, 1963 respectively arises only in pursuance of the savings provision under Section 29(2) of the Act, 1963. As a natural corollary, if Section 29(2) is, by itself, inapplicable to a particular case then there would be no need to look into or analyse whether there is any express exclusion. xiii. An exception to the aforesaid, i.e., a reason why one would still look at whether Sections 4 to 24 of the Act, 1963 respectively are “expressly excluded” irrespective of the application of Section 29(2) of the Act, 1963, is when the argument that the principles underlying those provisions of the Act, 1963, must be applied, is being explored.

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xiv. Presently, we are dealing with an appeal under Section 58(3) of the Act, 2013 preferred before the CLB – a quasi-judicial body. We have also answered in the negative on the submission that the principles underlying Section 5 of the Act, 1963 must be applied. Section 29(2) of the Act, 1963 is, therefore, of no relevance and there arises no occasion to examine whether Section 58(3) of the Act, 2013 “expressly excludes” the application of Section 5 of the Act, 1963. xv. The simpliciter limitation period prescribed under Section 58(3) of the Act, 2013 must not be read to be merely directory. The presence of any additional pre-emptory language in the form of “but not thereafter” or “shall” would not always be necessary to convey that the prescribed period is mandatory. xvi. Section 433 of the Act, 2013 which empowers the NCLT and the NCLAT respectively to apply the provisions of the Act, 1963, as far as may be, to the proceedings and appeals before itself, cannot be borrowed to signify the existence of a similar power with respect to the CLB. Moreover, the remedy of the respondent was already time-barred before the coming into force of Section 58(3) of the Act, 2013, let alone the coming into force of Section 433 of the Act, 2013. Hence, the change in law cannot enure to the benefit of the present respondent.

161. In the overall view of the matter, we have reached the conclusion that the High Court could be said to have committed an error in dismissing the statutory appeal filed under Section 10F of the Erstwhile Act and thereby, affirming the order of the CLB condoning the delay of 249 days in filing the appeal under Section 58(3) of the Act, 2013.

162. In the result, this appeal succeeds and is hereby, allowed. The impugned judgement and order of the High Court is set-aside.

163. Pending applications, if any, shall also stand disposed of.

Result of the case: Appeal allowed.