The provisions of Section 5 of the Limitation Act, 1963 were excluded from its applicability beyond the 60-day period prescribed under Section 25(1) of SICA.

Ajay Kumar Mittal,J.

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, decided on 25.11.2008 (2009 (22) VST 2010) 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 decided on 15.4.2010, 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), decided on 8.6.2010 ((2010 IVLLJ734 Mad) and by the Kerala High Court in Thomas and another vs. The Kottayam Municipality and another, decided on 28.8.2008, (2008 (3) Ker L.J.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 Ban