M/S. SURYACHAKRA POWER CORPORATION LIMITEDversusELECTRICITY DEPARTMENT, REP. BY ITS SUPERINTENDING ENGINEER, PORT BLAIR AND OTHERS

                               [2016) 8 S.C.R. 108


A       MIS. SURYACHAKRA POWER CORPORATION LIMITED
                                       v.
             ELECTRICITY DEPARTMENT, REP. BY ITS
      SUPERINTENDING ENGINEER, PORT BLAIR AND OTHERS
B                        (Civil Appeal No. 5958of2015)
                             SEPTEMBER 22, 2016
             [KUIUAN JOSEPH AND R. F. NARIMAN, JJ.]
          Electricity Act, 2003 - s.125 - Special limitation period -
  Applicability of s.5, Limitation Act, 1963 - Appeal before Supreme
c Court. beyond 120 days' limitation period uls. 125, Electricity Act -
  Condonation ojdelay sought 011 the ground that the delay ll'as
  mai11ly on account of time taken in prosecuti11g review petition before
  the Appellate Tribunal for Electricity and also because <?[vacations
  in Supreme Court - Held: Appeal u!s. 125 has to be .filed ll'ithi11 60
D days ji-0111 the date of com111z111icatio11 <~f decisio11 or order of the
  Appellate Tribunal - A further period of 60 days may be allowed by
  the Supreme Court, if sati.1fied that appellant wa.1· prevented by
  szif}icient cause from filing the appeal - Thus, the maximum period
  ll'ithin irhich an appeal can be filed uls. 125 is 120 days, including
  discretion granted to the Supreme Court to condone the delay limited
E
  to 60 days - Therefore, Supreme Court cannot condone the delay
  beyond 60 days by invoking s.5 <d' Limitation Act, ignoring the
  special limitation prescribed u11der the Electricity Act. 2003 -
  Furthe1; Ihere ll'ere fe11• days leji be.fore tlw d11si11g o/ thi.1· Court .for
  swnmer vacations, for the appellant to jile the appeal, therej(1re
F appellant not entitled even to be11ejit of pri11ciples uls ../. Limitation
  Act, 1963 j(1r exclusio11 ~f the period il'hen court is closed -
  Limitation Act, 1963.
           Limitation Act, 1963:
          s.l./ - Exclusio11 of time o.f prosecuting the case bonatide in
G   Court 1101 having j11risdictio11 - E111itleme111 - Held: The lll'o main
    ingredients j(1r al/racting s.1-1 are (i) prosecution of another civil
    proceedings with due diligence (ii) such prosecutio11 has to be in
    good faith - In the .facts of the present case there was lack of good
    faith and 110 due diligence 011 the part ~f appellant in conducting
H
                                            108
              MIS. SURYACHAKRAPOWERCORP. LTD. v.                           109
           ELECTRICITY DEPT., REP. BY ITS S.E., PORT BLAIR


its case - Therefore, appellant 11ot entitled to benefit u/s.14 - Delay/   A
!aches.
      Applicability of s.14 when s.5 1101 applicable - Held: Principles
 under s.14 can be applied even whe11 s.5 is 1101 applicable.
       Dismissing the appeal on the ground of delay, the Court
                                                                           B
       HELD:l.1 The review petition was filed on 25.02.2015
 beyond the period of limitation of 30 days. After the dismissal of
 the review petition on 07.05.2015, the instant appeal was filed
 b1<fore this Court on 07.07.2015. It is stated in the application
 that the delay mainly occurred on account of time taken by the
 appellant in prosecuting a review petition before the Appellate           c
 Tribunal for Electricity and also because of the summer vacations,
 and thus, there is a total delay of 161 days. [Paras 2, 3][41-D,E)
        1.2 The appeal under Section 125 of the Electricity Act,
· 2003 in Supreme Court has to be filed within 60 days from the
  date of communication of the decision or order of the Appellate           D
  Tribunal. llowevei·, the Supreme Court, if it is satisfied that the
  appellant was prevented by sufficient cause from filing an appeal
  within the said period of 60 days, may allow it to be filed within a
  further period not exceeding 60 days. Thus, the maximum period
  within which an appeal can be filed under Section 125 is 120 days         E
  which includes the discretion granted to the Supreme Court to
  condone the delay limited to 60 days. The Supreme Court cannot
  condone the delay beyond 60 days by invoking Section 5 of the
  Limitation Act, 1963 and ignoring the special limitation prescribed
  under the Electricity Act, 2003. [Para 5)[112-D-C]
                                                                            F
       Chhattisgarh State Electricity Board v. Ce11tral
       Electricity Regulatory Commissio11 and others (2010) 5
       SCC 23 : 2010 (4) SCR 680 - relied on.
       2.1 As regards the prayer that the application may be
 considered in terms of the principles under Section 14 of the              G
 Limitation Act, 1963. The two main ingredients required for
 attracting the principles under Section 14 of the Limitation Act,
 1963 are that the party should be prosecutin.g another civil
 proceedings with due diligence and that the prosecution should
 be in good faith. It is not enough that one part is satisfied. Both
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110            SUPREME COURT REPORTS                     [2016] 8 S.C.R.


A     due diligence and good faith must be established. (Paras 6, 8)(112-
      F; 113-G-H]
            M.P. Steel Corporation v. Commissioner of Central
            Excise (2015) 7 SCC 58 - relied on.
         2.2 In the present case, after obtaining the certified copy
B of the order on 17.12.2014, the review petition was filed only on
  25.02.2015, delayed by 37 days. Even after withdrawal of the
  review petition on 07.05.2015, the appeal was filed before this
  Court only on 07.07.2015. This Court closed for summer
  vacations in the year 2015 only on 16.05.2015 and reopened on
c 01.07.2015. Thus, there were few days left, before the closing of
  the Court for summer vacations, for the appellant to file the appeal
  after withdrawal of the review petition. The appeal was filed only
  after a few days of the reopening of the Court on 01.07.2015.
  Therefore, the appellant is not entitled even to the benefit of the
  principles under Section 4 of' the Limitation Act, 1963 for exclusion
D of the period when court is closed. Merely because the Tribunal
  condoned the delay in filing the review petition, for the purpose
  of application of Section 14 before this Court for exclusion of the
  period, in the facts of the present case, it cannot be said that
  there was due diligence. Under Section 2(h) of the Limitation
E Act, 1963, nothing shall be deemed to be done in good faith which
  is not done with due care and attention. The facts of the present
  case would also show lack of good faith on the part of the appellant
  in conducting its case. Thus, the appellant having not prosecuted
  his case with due diligence and good faith is not entitled for the
  application of the principles under Section 14 of the Limitation
F Act, 1963. (Para 9] [114-A-D]
                            Case Law Reference
            2010 (4) SCR 680         relied on              Para5
            (2015) 1 sec 58          relied on              Para 7
G
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5958
      of2015.
            From the Judgment and Order dated 28.11.2014 of the Appellate
      Tribunal for Electricity at New Delhi in Appeal No. 200of2013.
H           Rakesh Khanna, Sr. Adv., Ms. Ruchi Singhwani, Mohit Paul,
              MIS. SURYACHAKRAPOWERCORP. LTD. v.                                   111
            ELECTRICITY DEPT., REP. BY ITS S.E., PORT BLAIR


Ms. Megha Bharara, Vikash Arora, Ms. Diksha Jhingan, Advs. for the                 A
Appellants.
     Gurukrishna Kumar, Sr. Adv., Rohit Rao N., Mukund P. Unny,
Ananga Bhattacharyya, Advs. for the Respondent.
       The Judgment of the Court was delivered by
                                                                                   B
       KURIAN, J. I. This appeal is filed under Section I 25 of the
Electricity Act, 2003. Interlocutory Application No. I of 20 I 5 is for
con donation of 161 days' delay in filing the appeal. The main ground in
the application is that the delay occurred on account of the time taken by
the appellant in prosecuting a review petition before the Appellate Tribunal
for Electricity.                                                                   c
       2. lt is seen from the application for condonation of delay that the
original order of the Appellate Tribunal was passed on 28.11.2014. A
certified copy of the order was obtained on 17.12.2014. Review petition
was filed on 25.02.2015 beyond the period oflimitation of30 days. We
are informed that the Appellate Tribunal had condoned the delay and                 D
entertained the review petition.
       3. Be that as it may, on 07.05.2015, the review petition was
dismissed as withdrawn. According to the appellant and as stated in the
application for condonation of delay before this Court, the review petition
was withdrawn with a view to filing the present appeal before this Court.           E
After the dismissal of the review petition on 07.05.2015, the present
appeal is filed before this Court on 07.07.2015. It is stated in the application
that the delay occurred on account of the summer vacatio'ns, and thus,
there is a total delay of 161 days.
      4. Section 125 of the Electricity Act, 2003 provides for appeals to           F
the Supreme Court of India. The provision reads as follows:
       "125. Appeal to Su11reme Court.-Any person aggrieved
       by any decision or order of the Appellate Tribunal, may,
       file an appeal to the Supreme Court within sixty days from
       the date of communication of the decision or order of the                    G
       Appellate Tribunal, to him, on any one or more of the
       grounds specified in section 100 of the Code of Civil
       Procedure, 1908 (5 of 1908):
       Provided that the Supreme Court may, if it is satisfied that
       the appellant was prevented by sufficient cause from filing
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112                SUPREME COURT REPORTS                      [2016] 8 S.C.R.


A            the appeal within the said period, allow it to be filed within
             a further period not exceeding sixty days."
              5. The appeal under Section 125 of the Electricity Act, 2003 in
      Supreme Court has to be filed within 60 days from the date of
      communication of the decision or order of the Appellate Tribunal.
B     However, the Supreme Court, if it is satisfied that the appellant was
      prevented by sufficient cause from filing an appeal within the said period
      of 60 days, may allow it to be filed within a further period not exceeding
      60 days. Thus, the maximum period within which an appeal can be filed
      under Section 125 is 120 days which includes the discretion granted to
      the Supreme Court to condone the delay limited to 60 days. The Supreme
c     Court cannot condone the delay beyond 60 days by invoking Section 5
      of the Limitation Act, 1963 and ignoring the special limitation prescribed
      under the Electricity Act, 2003. This Court, in Chhattisgarh State
      Electricity Board v. Central Electricity Regulatory Commission
      and others', at paragraph-32, has settled this issue:
D            "32. In view of the above discussion, we hold that Section
             5 of the Limitation Act cannot be invoked by this Court for
             entertaining an appeal filed against the decision or order of
             the Tribunal beyond the period of 120 days specified in
             Section 125 of the Electricity Act and its proviso. Any
             interpretation of Section 125 of the Electricity Act which
E            may attract the applicability of Section 5 of the Limitation
             Act read with Section 29(2) thereof will defeat the object
             of the legislation, namely, to provide special limitation for
             filing an appeal against the decision or order of the Tribunal
             and proviso to Section 125 will become nugatory."
 F           6. Learned Senior Counsel at this juncture prays that the
      application may be considered in terms of the principles under Section
      14 of the Limitation Act, 1963. Section 14 of the Limitation Act, 1963
      reads as follows:
             "14. Exclusion of time of proceeding bona fide in court
             without jurisdiction.- (1) In computing the period of
G
             limitation for any suit the time during which the plaintiff has
             been prosecuting with due diligence another civil proceeding,
             whether in a court of first instance or of appeal or revision,
             against the defendant shall be excluded, where the
             proceeding relates to the same matter in issue and is
H     1
          (2010)   s sec 23
            MIS. SURYACHAKRAPOWERCORP. LTD. v.                              113
    ELECTRICITY DEPT., REP. BY ITS S.E., PORT BLAIR [KURIAN, J.)


      prosecuted in good faith in a court which, from defect of             A
      jurisdiction or other cause of a like nature, is unable to
      entertain it.
      (2) In computing the period oflimitation for any application,
      the time during which the applicant has been prosecuting
      with due diligence another civil proceeding, whether in a
                                                                            B
      co mt of first instance or of app'eal or revision, against the
      same party for the same relief shall be excluded, where
      such proceeding is prosecuted in good faith in a court which,
      from defect ofjurisdiction or other cause of a like nature, is
      unable to entertain it.
      (3) Notwithstanding anything contained in rule 2 of Order             c
      XXIII of the Code of Civil Procedure, 1908 (5of1908), the
      provisions of sub-section (I) shall apply in relation to a fresh
      suit instituted on pennission granted by the court under rule
       I of that Order where such permission is granted on the
      ground that the first suit must fail by reason of a defect in
                                                                            D
      the jurisdiction of the court or other cause of a like nature.
      Explanation.- For the purposes of this section,-

      (a) in excluding the time during which a former civil
      proceeding was pending, the day on which that proceeding
      was instituted and the day on which it ended shall both be             E
      counted;
      (b) a plaintiff or an applicant resisting an appeal shall be
      deemed to be prosecuting a proceeding;
      (c) misjoinder of parties or of causes of action shall be
      deemed to be a cause of a like nature with defect of
                                                                             F
      jurisdiction."
      7. That the principles under Section 14 of the Limitation Act, 1963
can be applied even when Section 5 of the Act is not applicable, is no
more res integra, in view ofM.P. Steel Corporation v. Commissioner
of Central Excise 2 •
                                                                             G
       8. The two main ingredients required for attracting the principles
under Section 14 of the Limitation Act, 1963 are that the paity should be
prosecuting another civil proceedings with due diligence and that the
prosecution should be in good faith. It is not enough that one part is
satisfied. Both due diligence and good faith must be established.
' (20I5J 1 sec 58                                                            H
114             SUPREME COURT REPORTS                          [2016] 8 S.C.R.



A            9. In the case before us, after obtaining the certified copy of the
      order on 17.12.2014, the review petition was filed only on 25.02.2015,
      delayed by 37 days. Even after withdrawal of the review petition on
      07.05.2015, the appeal was filed before this Court only on 07.07.2015.
      This Court closed for summer vacations in the year 2015 only on
      16.05.2015 and reopened on 01.07.2015. Thus, there were few days
B
      left, before the closing of the Court for summer vacations, for the
      appellant to file the appeal after withdrawal of the review petition. The
      appeal was filed only after a few days of the reopening of the Court on
      01.07.2015. Therefore, the appellant is not entitled even to the benefit of
      the principles under Section 4 of the Limitation Act, 1963 for exclusion
c     of the period when court is closed. Merely because the Tribunal condoned
      the delay in filing the review petition, for the purpose of application of
      Section 14 before this Court for exclusion of the period, in the facts of
      the present case, it cannot be said that there was due diligence. Under
      Section 2(h) of the Limitation Act, 1963, nothing shall be deemed to be
      done in good faith which is not done with due care and attention. The
0
      facts as narrated above would also show lack of good faith on the pa11
      of the appellant in conducting its case. Thus, the appellant having not
      prosecuted his case with due diligence and good faith is not entitled for
      the application of the principles under Section 14 of the Limitation Act,
      1963.
E            10. By order dated 03.08.2015, it is seen that this Cou11 had
      condoned the delay without noticing the bar under Section 125 of the
      Electricity Act, 2003 for condoning delay beyond 60 days after expiry of
      the limitation period. Therefore, the order dated 03.08.2015 condoning
      the delay of 161 days in filing the appeal is recalled.Since, the Supreme
F     Court cannot condone the delay beyond 60 days under Section 125 of
      the Electricity Act, 2003, and in the facts of the present case, since the
      principles of Section 14 of the Limitation Act, 1963 are not attracted,
      Interlocutory Application No. I of 2015 for con donation of delay is
      dismissed. Consequently, the appeal is also dismissed on the ground of
      delay.
G
             11. There shall be no order as to costs.


      Divya Pandey                                                Appeal dismissed.


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