STATE OF HARYANA Vs. HINDUSTAN MACHINE TOOLS LIMITED

JUDGEMENT

(1.) The matter has been placed before this Bench in pursuance of reference made by a Division Bench of this Court vide order dated 1.10.2013 to the following effect:-

(2.) Before delving into the issue involved herein, a few facts may first be noticed to put the controversy in its true perspective. Respondent No.1 is a company incorporated on 1.4.2000 and is having five factories located at Bangalore, Pinjore, Ernakulam, Hyderabad and Ajmer. The company commenced commercial production on 28.3.2001. On 22.12.2005, respondent No.1 got itself registered under Haryana General Sales Tax Act, 1973 (now repealed) (HGST Act), Haryana Value Added Tax 2003(HVAT Act) and Central Sales Tax Act, 1956 (CST Act). Ever since its registration, it has been doing its business regularly returning substantial gross turnover every financial year. The company had been affected by the liberalization process and became a sick industrial company within the definition of Section 3(1)(o) of the Sick Industrial Company's (Special provisions) Act, 1985 (in short, "the SICA") from the very first year of its operation i.e. 2000-01 as its accumulated losses exceeded its networth. Based on its audited balance sheet as on 31.3.2005, the company filed a reference under the SICA vide Form No.A dated 22.5.2005 before the Board of Industrial and Financial Reconstruction, New Delhi (BIFR). Respondent No.4 vide its order dated 2.12.2006 declared the company a sick unit and appointed UCO Bank as an operating agency to prepare rehabilitation Scheme for the company. The cut off date was fixed as 31.3.2007. Thereafter, a joint meeting of all the parties was convened. However, no notice was issued to the appellant State. Subsequently on 17.3.2008, a revival scheme was submitted by the UCO Bank operating agency. The BIFR formulated the draft rehabilitation scheme for revival of the company and invited objections/suggestions within 60 days of the date of the order. The BIFR after hearing the affected parties passed the order dated 12.6.2008. On 17.7.2009, a decision was taken by the appellant department to express its inability to implement the order dated 12.6.2008 and accordingly decided to file an appeal before the appellate authority constituted under the SICA. The said appeal was preferred under section 25 of the SICA alongwith the affidavit accompanied by an application under section 5 of the Limitation Act, 1963 (in short, "the 1963 Act") for condonation of delay of 354 days in filing the appeal. Respondent No.3 while dealing with the appeal alongwith the application for condonation of delay dismissed the appeal being time barred vide order dated 28.4.2010. The appellant herein challenged the said order before this Court through Civil Writ Petition which was dismissed by a learned Single Judge vide order dated 29.8.2011 upholding the order passed by the appellate authority relying upon the decision of the Delhi High Court in Anil Mehra v. East India Weaving Limited,2001 2 RAJ 323. Aggrieved by the order, the appellant State filed Letters Patent Appeal before this Court. Learned counsel for the appellant relied upon decision of this Court in Appellate Authority for Industrial and Finance Reconstruction's case , wherein in identical issue, the delay was condoned. On the other hand, learned counsel for the respondent relied upon judgments of the Apex Court, Madras, Delhi and Kerala High Courts mentioned in the reference order holding contrary view. The Division Bench vide order dated 1.10.2013 after hearing the matter opined that in order to have consistent judicial view on the issue, the same be referred to the larger Bench for consideration. Hence the matter is before this Full Bench.

(3.) The pristine legal question which has been referred to this Full Bench reads thus:-