ORDER

Misc. Case No. 239 of 2005

25.09.2013 - This is an application for condonation of delay in filing the present appeal by applying the provisions under Section 5 of the Limitation Act.

2. The appeal has been preferred against an order dated 10.1.2005 passed by the Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar. Admittedly, there is a delay of 70 days in filing the appeal. The appeal has been preferred under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as 'the Act'). Section 23 of the Act provides as follows:

"23. Appeals - (1) Save as provided in Sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie from every order, not being an interlocutory order, of the Claims Tribunal, to the High Court having jurisdiction over the place where the Bench is located.

(2) No appeal shall lie from an order passed by the Claims Tribunal with the consent of the parties:

(3) Every appeal under this section shall be preferred within a period of ninety days from the date of the order appealed against."

3. An objection has been filed by the respondent to this misc. case petition wherein the explanation given for the delay by the appellant has been refuted inasmuch as it has been stated that Section 5 of the Limitation Act has no application to an appeal under Section 23 of the Act. It would be opt to refer to Section 17 of the Act which prescribes the power with the Claims Tribunal to condone the delay under Subsection (2) thereof. Section 17 of the Act reads as follows :

“17. Limitation - (1) The Claims Tribunal shall not admit an application for any claim -

(a) under sub-clause (i) of clause (a) of Sub-section (1) of Section 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway.

(b) under sub-clause (ii) of clause (a) of Sub-section (1) or, as the case may be, Sub-section (1A) of Section 13 unless the application is made within one year of occurrence of the accident;

(c) under clause (b) of Sub-section (1) of Section 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration.”

4. Learned counsel for the respondent-opposite party in this misc. case petition relying upon the decision in the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited and another, 2009 (5) SCC 791 submitted that in the said case, the Hon'ble Supreme Court while deciding a case under Section 35-H(1) of the Central Excise Act, 1944 observed that as per the scheme of the Central Excise Act, Section 5 of the Limitation Act for condonation of delay in filing an application under Section 35-H of the Act does not apply.

5. Mr. Mishra, learned counsel appearing for the appellant drew the attention of this Court to Section 29 (2) of the Limitation Act which provides that 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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law Under Section 23 (3) of the Railway Claims Tribunal Act provides the period of limitation for preferring an appeal to be90 days. Though no provision for condonation of delay is provided under the said section, in the absence of express exclusion of application of the Limitation Act, delay can be condoned by virtue of applicability of Section 5 of the Limitation Act in terms of Section 29(2) of the said Act. He further submitted