- (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:- "The present appeal seeks to raise a question of legality of the order of the learned Single Judge dated 29.8.2011 affirming the view taken by the AAIFR that the appeal filed by the appellant was barred by time and even beyond the extended period permissible and thus, it could not have examined the merits of controversy. Learned counsel for the appellant has, however, relied upon the Division bench judgment of this Court in CWP No.7965 of 2008 titled as State of Haryana v. Appellate Authority for Industrial and Financial Reconstruction and others, 2009 22 VST 210 to contend that in a similar factual matrix where the issue was of the BIFR to decide the jurisdiction to waive off the interest on sales tax, it was deemed appropriate to examine the merits of the controversy by seeking to condone the delay. On the other hand, learned counsel for the respondents has referred to certain issues expressed by the Delhi High Court, Madras High Court as well as the Hon'ble Supreme Court of India. In the context of the same enactment in Writ Petition (Civil) No.2728 of 2012 titled as M/s Agarpara Jute Mills Limited v. Board for Industrial and Financial Reconstruction and others, decided on 8.5.2012, it was held that there could not be any condonation of delay relying upon the judgment of the Supreme court in Union of India v. Popular Construction Company, 2001 8 SCC 470. The Special Leave Petition against this judgment bearing No.18296 of 2012 was dismissed on 30.11.2012. Reference has also been made to the judgments of the Supreme Court in Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and others, 2010 5 SCC 23 where in the context of delay under section 125 of the Electricity Act, 2003, it has been observed that the delay cannot be condoned and Section 5 of the Limitation Act, 1963 cannot be invoked. The relevant provision is stated to be similar to the one in question in the present case. Reference has also been made to the views expressed by the Supreme Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and others, 2008 3 SCC 70 in the context of Section 35 of the Central Excise Act, 1954 as the specific provision providing for limitation would be rendered otiose. This principle has been followed by the Madras High Court in the Commissioner Udumalaipet Municipality v. Rajammal and others, decided on 8.6.2010 (), M. Unnikrishnan vs. Deputy Commissioner of Labour (Appeal), 2010 4 LLJ 734 ) and by the Kerala High Court in Thomas and another vs. The Kottayam Municipality and another, 2008 3 KerLJ 482). It appears that the aforesaid judgments were either not brought to the notice of the Division Bench of this Court or some of the pronouncements have come later. We find some merit in the plea of the appellant that there should be consistent judicial view on this issue and thus, we are of the view that it would be more appropriate to refer this issue to a larger Bench for consideration. The question, which would thus arise, would be whether under Section 25 of the Sick Industrial Companies (Special Provisions) Act, 1985, it would be permissible for the AAIFR to condone delay beyond the period of 45 days plus 60 days and whether if it is not so, can the High Court exercise the power under Article 226 of the Constitution of India to condone the delay and remit the matter for decision on merits by the AAIFR. The papers be accordingly placed before the Full bench so constituted."
(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:- "Whether under Section 25 of the Sick Industrial Companies (Special Provisions) Act, 1985, it would be permissible for the AAIFR to condone delay beyond the period of 45 days plus 60 days and whether if it is not so, can the High Court exercise the power under Article 226 of the Constitution of India to condone the delay and remit the matter for decision on merits by the AAIFR.";