STATE OF HARYANA Vs. HINDUSTAN MACHINE TOOLS LIMITED

JUDGEMENT

(1.) The issue of maintainability of appeal arises on the issue of limitation. An appeal filed against the order of Board for Industrial & Financial Reconstruction (BIFR) under the Sick Industrial Companies (Special Provisions), Act (SICA) was presented along with an application to condone the delay under Section 5 of the Limitation Act. The provision for an appeal under SICA is contained under Section 25 of the Act as follows:-

(2.) The learned counsel for the petitioners refers to a decision of the Hon'ble Supreme Court in Kailash v. Nanhku and others, 2005 4 SCC 480, to say that Section 5 could be invoked even in such a situation. The applicability of Section 5 was considered in the context of an application filed under Order 8 Rule 1 CPC and the amendment that has been brought about by Act 22 of 2002 that provides for 90 days for filing a written statement and sets out also a further period of 30 days for giving an extension of time. In Salem Advocate Bar Association Tamil Nadu v. Union of India, 2005 AIR(SC) 3353, the Hon'ble Supreme Court has stated that the time prescribed for filing the written statement was only directory and not mandatory and, therefore, the extension of time that a person sought under Section 5 could always be invoked. What is possible for a procedure in law cannot be applied equally to substantive law that sets out a specific period of limitation. This has been considered by the Hon'ble Supreme Court even earlier in Union of India v. Popular Construction Company, 2001 8 JT 271, that made inapplicable the application for condonation of delay under Section 5 for filing a petition or setting aside the award. The same principle could apply to this as well. I am not prepared to join issues on the merits contended by the State and if the Appellate Authority had dismissed it on the point of limitation, I am of the view that the decision was correct and would require no intervention. The issue of extending the period of limitation itself cannot be done through a writ petition, as held in a decision of the Delhi High Court in Anil Mehra v. East India Weaving Limited,2001 2 RAJ 323.