@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashThis Court issued Rule Nisi on 14-12-2007. A counter affidavit is filed by the second respondent.
2. Heard Sri P. Badri Premnath, learned Counsel representing the writ petitioner, Sri K.V. Anil Kumar, counsel representing the first respondent, Sri M. Narender Reddy, counsel representing the second respondent, Sri S. Sriram Reddy, counsel representing the third respondent and Sri Y.V. Ravi Prasad, counsel representing the fourth respondent.
3. Sri P. Badri Premnath, learned Counsel for the writ petitioner had taken this Court through the contents of the affidavit filed in support of the petition and also through Sections 18 and 25 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter in short referred to as ''the Act'' for the purpose of convenience) and also placed strong reliance on the decision of this Court in
4. On the contrary, Sri M. Narender Reddy, representing the second respondent had taken this Court through the contents of the counter affidavit and would maintain that after long lapse of time, though the writ petitioner had knowledge about the order made, he filed an appeal only with a view to delay the proceedings and hence the impugned order is in accordance with law. The counsel representing respondents 1,3 and 4 had taken some other stand before this Court.
5. The writ petition is filed for a writ of Mandamus holding that the order passed by the A.A.I.F.R. dated 25-04-2007 dismissing the appeal is not correct and consequently, set aside the order of AAIFR dated 25-04-2005 in Appeal No. 63/2007 and further direct to consider the appeal on merits and pass appropriate suitable orders.
6. The petitioner questioned the order passed by the B.I.F.R. dated 03-10-2001 in case No. 101/94 by observing that the petitioner is on lease basis, which is contrary to the record, an appeal was filed before A.A.I.F.R. in Appeal No. 63 of 2007. The appellate authority dismissed the appeal on the ground of limitation, even though the petitioner herein clearly stated that the appeal was filed in time by substantiating the reasons as to the limitation. The appellate authority without properly appreciating the reasons dismissed the appeal in a cryptic manner. It is stated that the order of the B.I.F.R. under appeal had been issued on 14-02-2007 and the appeal filed on 26-02-2007 is within 45 days from the date of issue. Section 25 of the Act stipulates that the order shall be issued to the concerned persons. Even though the petitioner was a party to the proceedings, no order copy has been communicated as contemplated under the said provision. It is only after applying for the copy, the same was furnished and hence the appeal is within the limitation. Even though the copy of the order under appeal was given to the petitioner before this Court, the same cannot be taken into consideration since the certified copy of the order was not issued as contemplated by the provisions of the Act. Several other facts also had been narrated. Sections 15 and 17 of the Act also had been referred to.
7. A counter affidavit was filed in detail denying certain allegations and narrating several of the factual details. The specific stand taken in the counter affidavit by the second respondent is to the effect that the writ petitioner thought of filing the appeal only with a view to further delay the proceedings.
8. Learned Counsel for the writ petitioner placed strong reliance on the decision of this Court in Dewan Bahadur Ramgopal Mills Ltd. Case (stated 1 supra) and the learned Judge at Paras 2 and 3 observed that
Many contentions were raised but this Court is confining, with the consent of the learned Counsel for the parties, to only one issue relating to the question of limitation which was raised before the 1st respondent and which was accepted. The orders of Board of Industrial and Financial Reconstruction(hereinafter referred as BIFR) against which the appeal was preferred were passed by BIFR on 28-5-1997, 12-8-1997 and 1-6-1998 and the appeal was filed on 26th November, 1998. The first respondent found that the appeal was time barred. This finding needs to be tested on the strength of relevant provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred as ''the Act''). Section 18 of the Act lays down the mode in which the scheme is prepared and sanctioned for sick industries. Subsection 3(a) to Section 18 lays down:
18.(3)(a). The scheme prepared by the operating agency shall be examined by the Board and a copy of the scheme with modification, if any, made by the Board shall be sent, in draft, to the sick industrial company and the operating agency and in the case of amalgamation, also to any other company concerned, and the Board shall publish or cause to be published the draft scheme in brief in such daily newspapers as the Board may consider necessary, for suggestions and objections, if any, within such period as the Board may specify.
Section 25 of the Act provides for appeal and limitation which is reproduced:
25. Appeal: (1) Any person aggrieved by an order of the Board made under this Act may, within forty five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority:
Provided that the Appellate Authority may entertain any appeal after the said period of forty five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
The contention of the learned Counsel for the petitioner is, appeal has to be made within forty five days from the date on which a copy is issued to the aggrieved person, and according to him, u/s 18(3)(a) of the Act a copy has to be necessarily issued to him by the Board and there is no question of making application for copy of the scheme for preferring an appeal. It is true that in the present case the scheme was published in the news papers and the 1st respondent also found that the petitioner had known as early as on 11-8-1998 that the scheme had been accepted and prepared by the BIFR, but he did not take any steps to obtain a copy and file an appeal. The sole ground on which the appellate Court has rejected the appeal was that the petitioner was aware of order having been passed by BIFR and he did not file the appeal within forty five days from the date of his knowledge, therefore the appeal was time barred. It is contended that the knowledge is not pertinent for the purpose of calculation of time for filing the appeal in view of mandate of Section 18(3)(a) and Section 25 of the Act. Section 25 makes it obligatory to file an appeal within forty five days from the date the copy is issued and Section 18(3)(a) makes it obligatory to issue a copy. Therefore, though the petitioner has knowledge or not, the appeal is maintainable if it is filed within forty five days of issuance of copy. In the present case the appeal has been filed within forty five days of issuance of copy.
I think, the interpretation sought to be placed on Section 18(3)(a) and Section 25 of the Act is logical. Once a party receives a copy in terms of Section 18(3)(a) time starts running out against him. If no copy is given to him even if he has knowledge, I do not think, he can be non-suited on the ground of limitation.
9. It is no doubt true that the counsel for respondents had pointed out the Legislative absurdity. It is needless to say that it is not for this Court to express any opinion in this regard. When the intention of the Legislature had been interpreted by the learned Judge of this Court, unless this Court is inclined to take a different opinion, this Court is bound to follow the said ratio.
10. In the light of the same, the impugned order cannot be sustained. It is needless to say that the appeal in question is to be decided on merits after hearing the concerned parties.
Accordingly, to the extent indicated above, the writ petition is hereby allowed. No order as to costs.
That Rule Nisi has been made absolute as above.
Witness the Hon''ble Sri Anil R. Dave, The Chief Justice on this the Friday the Twenty Fifth day of January, Two Thousand and Eight.
