Aggrieved by the decision v. Maharashtra Small-Scale Industries Development Corporat ion Limited & Ors.

Aggrieved by the decision, which had been reached in WP(C) No.4520/2002, the petitioner Company herein filed a petition seeking review of the directions , given by the judgment and order, dated 19.05.2004, passed in WP(C) No.4520/200 2. This application gave rise to Review Application No.91/2004. In the Review Ap plication, the Court came to the conclusion that the Act of 1993 was brought int o force, on 23.09.1992, with retrospective effect and the provisions for delayed payment interest was made effective from 23.09.1992. By order, dated 20.12.200 4, while disposing of the review petition, the Court clarified that interest, on delayed payment, has to be calculated, with effect from 23.09.1992, on the prin cipal as well as the normal interest due. With the clarification so made, the re view petition was disposed of by directing the Commissioner to re-calculate the amount of interest in terms of the provisions of the Act of 1993 for any amount due on or after 23.09.1992.

Following the directions, given in the review petition, though the matte (vii) r came to the Commissioner, the Commissioner declined, by its order, dated 13.04 .2005, to direct payment of any further interest to the respondent Company. Aggr ieved by the order of the Commissioner, the respondent Company herein preferred an appeal, to the District Judge, Kamrup, by taking recourse to Section 22(8) of the Joghighopa (Assam) Unit of Ashok Paper Mills Limited (Acquisition and Trans fer of Undertaking) Act, 1990. This appeal gave rise to Misc. Appeal No.18/2008. The appeal was resisted by the Ashok Paper Mills Limited (i.e., present petiti oner Company) on the ground that the appeal was barred by limitation inasmuch as , according to the present petitioner Company, an appeal or application, in term s of Article 137 of the Limitation Act, 1963, must be made, at the most, within a period of three years from the date, when the right to apply accrues.

The peti tioner Company further contended, in the appeal, that the appeal was time-barred and may, therefore, be dismissed. (viii) Having heard the learned counsel for the parties, the learned District J udge passed an order, on 14.05.2009, in Misc. Appeal No.18/2008, holding the ’ap peal’ maintainable on the ground that no specific time limit had been fixed, und er the Limitation Act, 1963, for filing of appeal. The appeal was accordingly a dmitted for hearing. It is this order, dated 14.05.2009, which stands impugned b y the present petitioner Company by making this application under Article 227 of the Constitution of India.

I have heard Mr. B.D. Das, learned Senior counsel, for the petitioner C ompany, and Mr. G.P. Bhowmik, learned counsel, for the respondent Company. I hav e also heard Mr. D. Baruah, learned counsel, as amicus curiae.

Terming the appeal, which the opposite party herein has filed before the District Judge, Kamrup, as wholly not maintainable, Mr. B.D. Das, learned Senio r counsel, has submitted that the appeal, which has been filed by the claimant-o pposite party, is wholly misconceived in law inasmuch as when the scheme of the Jogighopa (Assam) Unit of Ashok Paper Mills Limited (Acquisition and Transfer of Undertaking) Act, 1990, is considered, in the light of the schedule of the Act, it would transpire, submits Mr. Das, that a creditor, who had made supply of ma terials to Ashok Paper Mill (i.e., the petitioner Company) would not be entitled to recover his dues by taking recourse to the Act. According to Mr. Das, learn ed Senior counsel, the Act envisages, apart from recovery of dues of the employe es on account of salary, wages, provident fund, etc., the recovery of loans, bot h secured and unsecured, of the banks and financial institutions, revenue, taxes , etc., but it does not envisage payment of dues of private creditors, such as, the respondent Company, which had made supplies of materials to the petitioner C ompany.

Mr. B. D. Das, learned Senior Counsel, has also submitted that the proce dure, prescribed for disposal of claim in Section 22 of the Act, makes it clear that a claim, when made, shall be disposed of expeditiously and, hence, in such circumstances, the word ’appeal’, appearing in sub-section (8) of Section 22, sh all be read as an ’application’ and if so read, then, the period of limitation f or such ’appeal’, which has to be regarded as an ’application’, becomes, by virt ue of Article 137 of the Limitation Act, 1963, three years from the time, when t he right to apply accrues inasmuch as Article 137 lays down that the period of limitation, within which an ’application’, other than the applications, which ar e provided under the Limitation Act, 1963, shall be three years from the time, w hen right to apply accrues.

In the present case, according to Mr. Das, the decision of the Commissio ner was passed as far back as on 13.04.2005 and the ’appeal’, in the present cas e, which ought to have been treated as an ’application’, having been preferred, admittedly, beyond the period of three years, the ’appeal’ ought to have been he ld to be time-barred. In support of his submission that the word ’appeal’, appearing in Sectio 7. n 22(8), shall be read as an ’application’, Mr. Das relies upon Snehadeep Struct ures Private Limited vs. Maharashtra Small-Scale Industries Development Corporat ion Limited, reported in (2010)3 SCC 34. Mr. Das further submits that an ’app eal’, when treated as an ’application’, must be preferred, in terms of Article 1 37, within three years from the time, when the right to apply accrues. In suppo rt of his submission, Mr. Das refers to, and relies upon, Kerala State Electrici ty Board, Trivandrum vs.

Mr. Baruah also submits that when the Indian Limitation Act, 1908, was in force, the Courts were of the view that Article 181, which prescribes a peri od of limitation of three years, relates to ’applications’, which are made under the Code of Civil Procedure and not the ’applications’, which may be made under statutes other than the Code of Civil Procedure; but, on coming into force of t he Limitation Act, 1963, the question arose as to whether, with the change in th e designing of the Limitation Act, 1963, and in the light of the language in whi ch Article 173 is couched, the ’applications’, which the Limitation Act, 1963, r efers to, must still be treated to be ’applications’ covered by the Code of Civi l Procedure, or, whether ’applications’, made under statutes, other than the Cod e of Civil Procedure, would also be covered by Article 137. This question, acco rding to Mr. Baruah, learned amicus curiae, was answered in Town Municipal Counc il, Athani, Vs. Presiding Officer, Labour Court, Hubli, reported in (1969) 1 SCC 873, by holding that even under the Limitation Act, 1963, an ’application’, whi ch Article 137 speaks of, has to be an ’application’ under the Code of Civil Pro cedure, made to a Court and not under any other statute.

The correctness of the decision, rendered in Town Municipal Council, Ath ani (supra), points out Mr. Baruah, was doubted by the Supreme Court, in Nityana nda M Joshi Vs. LIC of India, reported in (1969) 2 SCC 199. Eventually, however , submits Mr. Baruah, it was the Kerala State Electricity Board (supra), which M r. Das relies upon, wherein the question was answered by a three Judge Bench hol ding that Article 137 would apply not only to those ’applications’, which are fi led under the Code of Civil Procedure, but also to the ’applications’, made unde r any other statute, though such ’applications’ must be made to Courts and not t o any statutory body other than Courts. In the light of the decision, in Kerala State Electricity Board (supra), there is no escape from the conclusion, conced es Mr. Baruah, that Article 137 covers not merely ’applications’ made under the Code of Civil Procedure, but also under any other statute, though the ’applicati ons’, under a statute other than the Code of Civil Procedure too, must, accordin g to Mr. Baruah, be made to a Court and not to any Tribunal or any other statuto ry body other than the Court.

Referring to the provisions of sub-section (8) of Section 22, Mr. Baruah points out that as far as the case of Maharashtra Small-Scale Industries Develo pment Corporation Limited (supra) is concerned, the Court found that Section 7 o f the Interest on Delayed Payments to Small Scale and Ancillary Industrial Under takings Act, 1993, provided for an ’appeal’ against, amongst others, award and s ince Section 7 would have become redundant if an ’application’, which is made un der Section 34 of the Arbitration and Conciliation Act, 1996, seeking setting as ide of an award, is not treated as an ’appeal’, the Supreme Court concluded, in Maharashtra Small-Scale Industries Development Corporation Limited (supra), poin ts out Mr. Baruah, that an application, which Section 34 of the Arbitration and Conciliation Act, 1996, provides for, shall be treated as an ’appeal’ for the pu rpose of Section 7 so as to make Section 7 meaningful, or else, an award, though appeallable under Section 7, would not be covered by Section 7. In the case at hand, according to Mr. Baruah, there is no such provision, which can be used for the purpose of construing the word ’appeal’, which appear in Section 22(8), as an ’application’. In order to sustain the distinction, which he has drawn between the mean 13. ing of the expression ’application’, which appears under Article 137 of the Limi tation Act, 1963, as against the word ’application’, which appeared in Article 1 81 of the Indian Limitation Act, 1908, Mr. Baruah has taken me through the case of The Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumma, reporte d in (1976) 4 SCC 634, which Mr. Das relies upon.

Mr. Baruah further points out that a Division Bench of this Court, in Ab dul Gani Sarkar vs. Assam Board of Revenue and others, reported in AIR 1970 ASSA M & NAGALAND 82, has taken the view that since Section 151 of the Assam Land & R evenue Regulations, which provides for revision to the Board of Revenue, has not prescribed any period of limitation, exercise of revisional jurisdiction, under Section 151 of the Regulations, must be treated to be not restricted by any per iod of limitation and it is, thus, possible for the Board of Revenue to entertai n a revision at any point of time however belated the revision may be.

Notwithstanding the decision in Abdul Gani Sarkar (supra), which lays do wn that Section 151 of the Regulations having not prescribed any period of limit ation, the revisional jurisdiction must be treated to be exercisable at any poin t of time, Mr. Baruah, referring to Makbool Fatma (Smt) and others vs. Deputy Cu stodian General, Evacuee Property and another, reported in (1996) 5 SCC 493, The Gram Panchayat, village Kanonda vs. Director, Consolidation of Holdings, Haryan a, Chandigarh and others, reported in AIR 1990 SC 763 and Addl. Spl. Land Acqu isition Officer vs. Thakoredas, Major and others, reported in (1997) 11 SCC 412, submits that all these cases clearly take the view that even where no period of limitation is prescribed, an ’application’, which is made belatedly and suffers from latches, shall not be entertained. What will be the reasonable period, for the purpose of such an ’application’ in the setting of the facts of a given cas e, would, according to Mr.

Repelling the submissions made by Mr. Baruah, Mr. Das, learned Senior Co unsel, points out that an ’application’, in order to fall within the provision o f Article 137 of the Limitation Act, 1963, must not only be provided by way of a statute, but that such an application must be provided to a Court and not to bo dies other than Court, such as, a tribunal. Mr. Das points out that the cases, namely, Makbool Fatma (Smt) and others vs. Deputy Custodian General, Evacuee Pro perty and another, reported in (1996) 5 SCC 493, The Gram Panchayat, village Kan onda vs. Director, Consolidation of Holdings, Haryana, Chandigarh and others, re ported in AIR 1990 SC 763 and Addl. Spl. Land Acquisition Officer vs. Thakored as, Major and others, reported in (1997) 11 SCC 412, which Mr. Baruah has relied upon, shows that in all these cases, the appeal or revision was provided to a b ody, other than Court, and it is for this reason that it was held by the Supreme Court that such an appeal or revision, as the case may be, must be made within a reasonable period but what would the reasonable period, in a given case, would depend on the facts and the scheme of the statute.

Let me, first, determine as to what ’applications’ can fall within the e xpression ’application,’ which appears in Article 137 of the Limitation Act, 196 3. In order to understand the difference between what Article 181 of the Indian Limitation Act, 1908, provided and how the same differs from Article 137 of the Limitation Act, 1963, both the Articles are reproduced below : (cid:28)6. The provision contained in Article 137 of the Limitation Act, 1963 is as follows : Description of application egins to run Any other application for which no period of limitation is provided elsewhere in Time from which period b Period of limitation this Division. Three years When the right to apply accrues. Article 181 of the Indian Limitation Act, 1908 was as follows : (cid:28)8. Description of application egins to run Any other application for which no period of limitation is provided elsewhere in Three ye this schedule or by Section 48 of the Code of Civil Procedure.. Time from which period b Period of limitation When the right to apply accrues. On a comparative study of the provisions made in Article 173 vis-à-vis A 20. rticle 181, what can be clearly gathered is that Article 173 of the Limitation A ct, 1963, applies to such ’application’s for which no period of limitation is pr ovided elsewhere (cid:28)in this Division (cid:29); whereas Article 181 of the Indian Limitatio n Act provided that any other ’application’ for which no period of limitation is provided elsewhere in the Schedule of the Limitation Act or by Section 48 of th e Code of Civil Procedure, the period of limitation will be three years from the time, when the right to apply accrues. Thus, while Article 173 speaks of Divisi on, Article 181 spoke of the Schedule. It is the scheme of the Division in the L imitation Act, 1963, which needs to be clearly understood.

With regard to the above, it needs to be noted that Mr. Baruah, learned amicus curiae, is correct, when he points out that the Schedule of the Limitatio n Act, 1963, now, stands divided, unlike the Schedule of the Limitation Act, 190 8, into three clear Divisions. The first Division, which deals with suits, stand s divided into 10 parts, which prescribe different periods of limitations for di fferent classes of suits. Article 113, which falls under Part-X, states that any suit for which no period of limitation is provided elsewhere in this Schedule, the period of limitation shall be three years from the time, when the right to s ue accrues. Thus, for different classes of suits, as indicated hereinbefore, dif ferent periods of limitations have been prescribed under the First Division, but as far as suits in respect whereof, no period of limitation has been prescribed , Article 113 makes three years as the period of limitation for such suits from the time, when the right to sue accrues.

The Second Division of the Limitation Act, 1963, which has not been divi ded into any part, prescribes different periods of limitations for different cla sses of appeal unlike 10 different parts in which periods of limitations for sui ts are divided.

What is of utmost importance to note, while dealing with appeals, is tha t the Second Division does not prescribe any specific period of limitation in re spect of those appeals for which no period of limitation has been prescribed els ewhere in the Schedule of the Limitation Act, 1963. Thus, what becomes abundantl y clear is that where no period of limitation is prescribed for an appeal, there is no general provisions under the Limitation Act, which can be resorted to for prescribing the period of limitation for such appeals.

Coming to the Third Division of the Limitation Act, 1963, it needs to be noted that the Third Division, as rightly submitted by Mr. Baruah, learned amic us curiae, deals with ’application’s and stands divided into two parts. While th e Part I deals with ’application’s in specific cases and prescribes different pe riods of limitation for different specified classes of ’application’s, Part-II o f the Third Division deals with such classes of ’application’s in respect whereo f, no period of limitation has been prescribed. Article 137 falls under Part-II and reads, as reproduced above, that any other ’application’ for which no period of limitation is provided elsewhere in this Division, the period of limitation shall be three years from the time, when the right to apply accrues.

I may point out that so long as the Indian Limitation Act, 1908, remaine d in force, the judicial interpretation, in India, was that Article 181 applies to only such ’application’s, which are covered by the Code of Civil Procedure an d would not, therefore, apply to ’applications’, which can be made under any oth er statute meaning thereby that an ’application’, which can be made under the Co de of Civil Procedure, but has no prescribed period of limitation, the period of limitation shall be, in the light of Article 181, three years from the time, wh en the right to sue accrues; but as regard ’applications’, which can be made und er other statues, there was no prescribed period of limitation inasmuch as Artic le 181 did not cover such an ’application’. However, on coming into force of the Limitation Act, 1963, the question arose in, in Town Municipal Council, Athani vs. Presiding Officer, Labour Court, Hubil, reported in (1969) 1 SCC 873, as to whether construction of Article 137 shall be same as was in the case of Article 181, namely, whether Article 137 applies to only such ’applications’, which may be filed under the Code of Civil Procedure, or would Article 137 also cover such ’applications’, which may be filed under any other statute.

In Town Municipal Council, Athani (supra), In Town Municipal Council, At hani vs. Presiding Officer, Labour Court, Hubil, reported in (1969) 1 SCC 873, a workman had applied to the Labour Court, under Section 33C(2) of the Industrial Disputes Act, for computation of benefit in respect of over-time duty, which he had performed. When the Labour Court accepted the ’application’, the Athani Mun icipal Council challenged the Labour Court’s decision by way of a writ petition. In course of time, when the matter reached the Supreme Court, it was contended, on behalf of Athani Municipal Council, that the jurisdiction of the Labour Cour t is barred by the provisions of the Minimum Wages Act, 1948, and, secondly, ’ap plication’s to the Labour Court were time barred under Article 137 of the Limita tion Act, 1963. The Supreme Court held, in Town Municipal Council, Athani (supra ), that the alteration in the 1963 Limitation Act by Article 137, namely, the i nclusion of the words (cid:28)other proceedings (cid:29) in the long title to the 1963 Limitati on Act, the omission of the preamble and the change in the definition so as to i nclude petition in the word (cid:28)’application’ (cid:29) do not show any intention to make Ar ticle 137 applicable to proceedings before bodies other than courts, such as, qu asi-judicial tribunals and executive bodies.

The correctness of this decision was doubted in Nityananda M Joshi Vs. L IC of India, reported in (1969) 2 SCC 199. It was, however, in Kerala State Elec tricity Board (supra), which Mr. Das relies upon, wherein the question arose, on ce again, as regards the correct interpretation of Article 137, namely, whether Article 137 would apply to only those ’applications’, which are filed under the Code of Civil Procedure or this Article (Article 137) would apply even to cases, where ’applications’ are filed to Courts under any other statute. Apart from the fact that in Town Municipal Council, Athani (supra), the 29. Supreme Court had taken the view that Article 137 would not apply to ’applicatio n’s made under any statute other than the Code of Civil Procedure, the Supreme C ourt had also pointed out that ’application’, which Article 137 conceives of, mu st be ’application’s, which are presented to a Court and as the ’application’, i n Town Municipal Council, Athani (supra), had been made to the Labour Court, the Supreme Court pointed out that the Labour Court, being a Tribunal, was not a Co urt and, therefore, Article 137 had no ’application’.

Thus, the decision in Town Municipal Council, Athani (supra), had two pa rts. One part of the decision was that Article 137 applies to only such ’applica tion’s, which are made under the Code of Civil Procedure, and the other part was that in order to fall within the ambit of the ’application’, as envisaged under Article 137, an ’application’ must be made to a Court and not to Tribunal or bo dies, which are not Courts. Dissenting with its earlier decision, in Town Municipal Council, Athani 31. (supra), a three Judge Bench of the Supreme Court, in The Kerala State Electrici ty Board, Trivandrum (supra), speaking through A. N. Ray, CJ, held that the ’app lication’, referred to under Article 137 of the Limitation Act, 1963, is not con fined to ’application’s contemplated by or under the Code of Civil Procedure and since, in The Kerala State Electricity Board, Trivandrum (supra), the statutory provisions, under interpretation, contemplated determination of compensation by the District Judge, the Supreme Court took the view that the same calls for a j udicial decision and such an ’’application’’ must be treated as an ’application’ falling under Article 137 of the Limitation Act, 1963.

In short, thus, two things become transparent from the decision in The K erala State Electricity Board, Trivandrum (supra), namely, that the word ’applic ation’, which appears in Article 137, applies not only to ’applications’, which may be made under the Code of Civil Procedure, but would also cover ’application s’ other than ’application’s made under Code of Civil Procedure and, secondly, a n ’application’, in order to fall within the expression ’application’, appearing under Article 137, must be made to a Court and not to any other Body. To put it a little differently, The Kerala State Electricity Board, Triv 33. andrum (supra), holds that while Article 181 of the Indian Limitation Act, 1908, was confined to ’applications’ under the Code of Civil Procedure, Article 137 o f the Limitation Act, 1963, has extended its scope by bringing, within its sweep , not only ’applications’, which may be made under the Code of Civil Procedure, but also the ’applications, which may be made under statutes other than the Code of Civil Procedure; but whether made under the Code of Civil Procedure or under any other statute, an ’application’, in order to fall within the ambit of Arti cle 137, must be made to a Court and not to a Tribunal or any body other than Co urt. In effect, thus, the prescribed period of limitation of three years from th e time, when right to apply accrues, as envisaged by Article 137, relates to not only such an ’application’, which may be made under the Code of Civil Procedure , but which may also be made under any other statute provided that the ’applicat ion’ is required to be made to a Court.

As far as the cases of Makbool Fatma (Smt) and others vs. Deputy Custodi an General, Evacuee Property and another, reported in (1996) 5 SCC 493, The Gram Panchayat, village Kanonda vs. Director, Consolidation of Holdings, Haryana, Ch andigarh and others, reported in AIR 1990 SC 763 and Addl. Spl. Land Acquisition Officer vs. Thakoredas, Major and others, reported in (1997) 11 SCC 412, are co ncerned, it may be noted that all these cases are cases, where appeal, ’applicat ion’ or revision were required to be made, as correctly pointed out by Mr. Das, learned Senior counsel, to adjudicatory bodies other than Court. When ’applicati ons’, appeals or revisions are not made to Court, the provisions of the Limitati on Act, 1963, do not come into play. To this extent, there is no dispute. What i s, however, of vital importance to note is that in such cases, the Court may not , because of absence of any prescribed period of limitation, but because of dela y or lashes, refuse to grant relief to the party concerned, particularly, when, as correctly pointed out by Mr. Baruah, learned amicus curiae, when third party right matures. Thus, when an ’application’ or revision can be made under a statu te to an adjudicatory body other than Court and there is no prescribed period of limitation, the adjudicatory body would have the jurisdiction to entertain such an ’application’, appeal or revision, but it has the responsibility, as a publi c policy, to decide in an appeal, ’application’ or revision, whether such an app eal, revision or ’application’ suffers from delay or lashes and whether it shoul d grant relief and, in a given case, it is open to adjudicatory body not to gran t relief if the ’application’, appeal or revision suffers from delay, lashes or negligence.

Now, turning to the question as to whether Mr. Das is correct in suggest ing that creditor, such as, the respondent Company’s dues cannot be realized by taking resort to the Act, in question, inasmuch as the schedule of the Act cover s the dues of only employees on account of unpaid salaries, wages, Provident Fun d, etc, secured as well as unsecured loans of banks and financial institutions, it is apposite to take note of the Schedule, which reads as under: (cid:28)THE SCHEDULE (See Sections 9, 19, 20, 21, 22 and 24) Order of priority for the discharge of the liabilities of the Company in respect of the Undertaking. Pre-appointed Day Management Period. CATEGORY: I Employees’ dues on account of unpaid salaries and wages, provident fund, Employees’ State Insurance Contribution and any other amounts due to employees before the date of taking of the management of the Undertaking of the Company on the appointed day.

On drawing attention of Mr. Das to this aspect of the Act, Mr. Das could not assign any reason as to why ’any other dues’ shall not cover the dues of th e creditors, in general, and the case of creditors, such as, the respondent Comp any, in particular, who had supplied materials on credit to the petitioner Compa ny for carrying on their trading and manufacturing operations. There is, thus, n o substance in the contention of Mr. Das that the Act does not cover the claim o f the respondent Company.

Let me, now, turn to the last, but significant contention of Mr. Das, le arned Senior counsel, that the word appeal, which appears in Section 22(8) of th e Act, shall be construed as an ’application’. Suffice it to point out, in this regard, that it is, undoubtedly, permissible to interpret the term appeal, appea ring in a statute, as an ’application’, because the term appeal cannot be treat ed as an appeal in all contexts and all purposes. However, ordinarily, a word in a statute has to be given the meaning, which is general in nature unless the le gislative intent is indicated otherwise. It is not really for the Court to subst itute a word used by the legislature by any other word of its own choice unless such an intent is clearly discernible from the scheme of the statute. A reference, in this regard, may be made to the case of Union of India v 40. s. Rajiv Kumar, reported in (2003) 6 SCC 516, wherein the Supreme Court has poin ted out that a Court can only interpret a law and cannot legislate and that legi slative casus omissus cannot be supplied by judicial interpretative process.

From a bare reading of Section 7, it clearly transpires that it provides for an appeal not only against decree or order but also against an award. There can be no doubt that Section 34 of the Arbitration and Conciliation Act, 1996, provides for making of an application by a person, who is aggrieved by an award to get the award set aside. If the expression ’application’, which Section 34 of the Arbitration and Conciliation Act, 1996, uses, is refused to be treated or r ead as ’appeal, Section 7 of the Interest Act becomes redundant so far as award is concerned, though Section 7 provides for an appeal against an award too.

Thus, whole of the Interest Act becomes inapplicable if the word applica tion, which appears in Section 34 of the Arbitration and Conciliation Act, 1996, is not read as an appeal. It was for this limited reason that the Supreme Court pointed out, in Maharashtra Small-Scale Industries Development Corporation Limi ted (supra), that the word application, appearing in Section 34 of the Arbitrati on and Conciliation Act, 1996, must be read as an appeal so as to make applicati on of Section 7 feasible. The relevant observations, appearing in this regard, i n para 46, in Maharashtra Small-Scale Industries Development Corporation Limited (supra), read as under :- Further, if the word (cid:28)appeal (cid:29) is not construed as including an applicati (cid:28)46. on under Section 34 of the Arbitration Act, we are afraid that it would render t he term ’award’ redundant and the requirement of predeposit a total nullity with respect to all cases where a small-scale industry undertaking preferred arbitra l proceedings, prior to the incorporation of the reference procedure in 1998. Ar bitration necessarily has to result in an award. The only way of challenging an award in a court, in accordance with Section 5 read with the opening clause of S ection 34 is by foiling an application under the latter section. If such challen ge is not construed as an (cid:28)appeal (cid:29), the requirement of predeposit of interest be fore the buyer challenging an award passed against him, becomes a total nullity. The fact that an order passed on such application/challenge under section 34 is appealable under Section 37 is of no consequence. As the learned counsel for th e appellant Company rightly argued, such appeal filed against an order passed by the court under Section 34, not against an award passed against the buyer and i n favour of the small-scale industry undertaking. In all cases where the small-s cale industry undertaking enters into arbitration proceedings to obtain payment of interest, if we limit the requirement of predeposit to appeal under Section 3 7, therefore, we will be rendering the term (cid:28)award (cid:29) a nullity, which we are not empowered to do. (cid:29) (Emphasis is added).

In the present case, sub-section (8) of Section 22, which is material fo r our purpose, lays down that a claimant, who is dissatisfied with the decision of the Commissioner, may prefer an appeal against such decision to the principal civil court of original jurisdiction within the local limits of whose jurisdict ion the undertaking of the Government Company is situated : Provided that where a person, who is a Judge of High Court is appointed to be the Commissioner, such appeal shall lie to the High Court, at Guwahati, an d such appeal shall be heard and disposed by not less than two Judges of that Hi gh Court. A bare reading of Section 22(8) clearly shows that it provides for appea 45. l against the decision of the Commissioner by a person, who is aggrieved by the decision. In such circumstances, the word appeal, in the absence of anything els e in the Act, cannot be really construed as an ’application’ and since there is no period of limitation prescribed for preferring such an appeal, one has no opt ion, but to hold, and I do hold, that there is no limitation in preferring an ap peal against the decision of the Commissioner inasmuch as it would not be approp riate, on the part of this Court, to substitute the word appeal by the word ’app lication,’ when the legislature had thought it fit not to prescribe any period o f limitation for such appeal.

Coming to the case of Abdul Gani Sarkar vs. Assam Board of Revenue and o thers, (AIR 1970 ASSAM & NAGALAND 82), it may be pointed out that what fell for consideration, in Abdul Gani Sarkar (supra), was Section 151 of the Assam Lan d and Revenue Regulations (in short the Regulation). Regulation 151 read as unde r : (cid:28)151. cer may call for the proceedings held by any officer subordinate to it or him, a nd pass such orders thereon as it or he thinks fit. (cid:29) The Board, a Deputy Commissioner, a Settlement Officer and a Survey Offi

A Division Bench of this Court, in Abdul Gani Sarkar (supra), while int erpreting Section 151 of the Assam Land and Revenue Regulation, pointed out that Section 151 gives very wide power to the Board of Revenue to invoke, in an appr opriate case, its power to call for the proceedings held by any officer subordin ate to it or him, and pass such orders thereon as it or he thinks fit and in suc h case, therefore, the question of limitation would not arise. Otherwise also, c onsidering the fact that the power under Section 151 of the Regulation can be ex ercised suo motu, it is not possible to construe that the power given by Section 151 is limited by any period of limitation.

In Mohd Usman vs. Union of India, reported in (1969)2 SCR 232 : AIR 1969 SC 474, which Mr. Baruah, learned amicus curiae, refers to an application made on 11th July, 1961, by Mohd Usman to the District Judge, Jhansi, under Sections 8 and 20 of the Arbitration Act, 1940, for filing the arbitration agreement and for an order of a reference of the dispute to an arbitrator to be appointed by the Court. Though the Union of India, as a respondent in Mohd Usman (supra), con tended that the application was barred by limitation, the District Judge allowed nevertheless Usman’s application by holding that there is no period of limitat ion prescribed for making of an application under Sections 8 and 20. The defenda nt filed an appeal against the order. The High Court allowed the appeal insofar as it challenged the order under Section 20 by holding that the application was governed by Section 181 of the Indian Limitation Act, 1908, and was, therefore, barred by limitation as it was more than three years after the dispute had arise n. The point in issue, therefore, was whether an application under Section 20 of the Arbitration Act, 1940, is governed by Article 181 of the Indian Limitation Act, 1908. This was replied in the negative on the ground that Article 181 of th e Indian Limitation Act, 1908, applies to applications under the Code of Civil P rocedure and not to an application under the Arbitration Act, 1940, and as the I ndian Limitation Act, 1908, does not prescribe any period of limitation for such an application, the application is not barred.

What can be clearly gathered from the decision, in Mohd Usman (supra), i s that when there is no period of limitation prescribed in the Indian Limitation Act, 1908, the Court held that an application, under Sections 8 and 20 of the A rbitration Act, 1940, which is not governed by Article 181, can be filed at any time and is not barred by limitation. One of the principles, which clearly flows out of this decision in Mohd Usman (supra), is that when there is no period of limitation prescribed in respect of an application, no period of limitation can be adopted by the Court. After coming into force of the Limitation Act, 1963, an application, in respect whereof, no period of limitation has been prescribed un der any article of the Limitation Act, 1963, such an application has to be filed , because of Article 137, within three years from the time, when the right to su e accrues. Had Article 137 not been enacted, an application, falling outside the scope of the Limitation Act, 1963, would have had no period of limitation. Unlike Article 113, which is a residuary Article in respect of suits, pr 50. escribing three years as the period of limitation for institution of such a suit for which no period of limitation has been provided elsewhere in the Schedule o f the Limitation Act, 1963, or unlike Article 137, which is the residuary Articl e relating to applications prescribing, as already discussed above, three years as the period of limitation, there is no residuary Article in respect of appeals in the Limitation Act, 1963.

The question, therefore, which naturally arises, in this revision, is: W hen Section 22 (8), while providing for right to ’appeal’ for a dissatisfied cla imant, has not prescribed any period of limitation, would it be permissible to a dopt any specific period as the period of limitation for an ’appeal’ under Secti on 22(8) of the Jogighopa (Assam) Unit of Ashok Paper Mills Limited (Acquisition and Transfer of Undertaking) Act, 1990?

While dealing with the above question, it may, once again, be pointed ou t that Mr. D. Baruah has submitted that since there is no period of limitation p rescribed for an ’appeal’ under Section 22(8), the Court cannot adopt any specif ic period as the period of limitation for such an ’appeal’, when there is no res iduary Article in the Limitation Act, 1963. The implication is that the legislat ive intendment was not to provide any residuary period for ’appeals’ other than ’appeals’, which are provided by the special enactments. An ’appeal’, therefore, which Section 22(8) contemplates, is, according to Mr. Baruah, an ’appeal’, whi ch does not suffer from any period of limitation. Is this submission correct?

While considering the above submission, it needs to be pointed that in t he case of Vidyacharan Shukla Vs. Khubchand Baghel (AIR 1964 SC 1099), a Constit ution Bench of the Supreme Court had the occasion to deal with the question as t o what would be the period of limitation for an ’appeal’ under a special Act if the special Act happens to prescribe a period of limitation or prescribes no per iod of limitation. While holding that when the period of limitation is prescribe d by a special enactment, it is the period, which the special enactment prescrib es, would be the period of limitation for the ’appeal’, the minority, in Vidyach aran Shukla (supra), took the view that where the special enactment does not pre scribe any period of limitation, the ’appeal’ would have no prescribed period of limitation. The minority view, in Vidyacharan Shukla (supra), as expressed by A yyangar, J., was that when the right of ’appeal’ is given by the special Act and not by the Code of Civil Procedure (in short, ’the Code’), it would not be perm issible to read an ’appeal’ to a High Court as automatically falling within the period of limitation as prescribed, for an ’appeal’, to the High Court, by the I ndian Limitation Act, 1908, the reason being that there is no residuary Article for an ’appeal’ provided by a special Act without being restricted by any period of limitation inasmuch as such an interpretation would go against the plain int ention of the legislature, which left the period of limitation unrestricted, whi le providing for a right of ’appeal’ under the special enactment.

What is, now, of utmost importance to note is that disagreeing with the above view, the majority, in Vidyacharan Shukla (supra), held that in ’order’ to apply Article 156 (now, Article 116) under the Indian Limitation Act, 1908, it is not necessary for an ’appeal’ to be an (cid:28)appeal under the Code of Civil Proced ure (cid:29) and/or that the right to prefer the ’appeal’ should be conferred by the Cod e inasmuch as it is sufficient, in this regard, if the procedure for filing of t he ’appeal’ and the power of the Court, while dealing with the ’appeal’, are gov erned by the Code. The majority approved the decision of the Calcutta High Court in Aga Mohd. Hamdani Vs. Cohen (ILR 13 Cal 221) and also the decision of the Al lahabad High Court in Dropadi Vs. Hiralal (ILR 34 All 496). In Aga Mohd. Hamdani (supra), it had been pointed out by the Calcutta High Court that the Burma Cour ts Act, while providing for a right of ’appeal’, also made provisions for applic ability of the Code to such an ’appeal’ and the natural meaning of such a provis ion would be that an ’appeal’, to which the Code applies, would be governed by t he Code so far as the procedure is concerned. This view, as indicated hereinbefo re, was approved in Vidyacharan Shukla’s case (supra).

The majority view, in Vidyacharan Shukla (supra), further approved, as i ndicated above, the view of the Allahabad High Court, in Dropadi (supra), wherei n it had been held that several Indian enactments, for instance, the Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provin cial Insolvency Act, confer rights of ’appeal’ and direct the application of the provisions of the Code to such appeals, but prescribe no period within which su ch appeals might be filed, the idea being that Article 156 of the Indian Limitat ion Act, 1908, would furnish the period of limitation for the filing of such app eals too.

On the reasonings as described hereinabove, the majority, speaking throu gh Mudholkar, J., in Vidyacharan Shukla (supra), held, (cid:28)To attract Art. 156 of t he First Schedule to the Lim