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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5958 OF 2015

M/S. SURYACHAKRA POWER CORPORATION LIMITED     … APPELLANT(S)                                     

VERSUS

ELECTRICITY DEPARTMENT, REP. BY ITS SUPERINTENDING ENGINEER, PORT BLAIR  AND OTHERS     …RESPONDENT(S)    

J U D G M E N T

KURIAN, J.                        

1. This appeal is filed under Section 125 of the Electricity Act, 2003.

Interlocutory Application No. 1 of 2015 is for condonation 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

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Electricity.

2. It 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 of limitation of 30

days. We are informed that the Appellate Tribunal had condoned the

delay and 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dismissed as withdrawn.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petition was withdrawn with a view to filing the present appeal before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. 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

vacations, and thus, there is a total delay of 161 days.

4. Section 125 of the Electricity Act, 2003 provides for appeals to

the Supreme Court of India. The provision reads as follows:   

“125. Appeal to Supreme Court.-Any person ag- grieved by any decision or order of the Appellate Tri- bunal,  may,  file  an  appeal  to  the  Supreme  Court within sixty days from the date of communication of

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the decision or  order  of  the 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 suf- cient cause from filing the appeal within the said pe- riod, 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.

However, the Supreme Court, if it is satisfied that the appellant was

prevented by sufcient 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 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

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Electricity Regulatory Commission and others1, at paragraph-32,

has settled this issue:  

“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 pe- riod of 120 days specified in Section 125 of the Elec- tricity Act and its proviso. Any interpretation of Sec- tion 125 of the Electricity Act which 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.”

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 pe-

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(2010) 5 SCC 23

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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  of  M.P.  Steel  Corporation v.

Commissioner of Central Excise2.

8. The two main ingredients required for attracting the principles

under Section 14 of the Limitation Act, 1963 are that the party 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.

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

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 2  (2015) 7 SCC 58

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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  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 facts as narrated above 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 Act, 1963.

10. By  order  dated  03.08.2015,  it  is  seen  that  this  Court  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 Court cannot condone the delay beyond 60 days under

Section 125 of the Electricity Act, 2003, and in the facts of the present

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case, since the principles of Section 14 of the Limitation Act, 1963 are

not attracted, Interlocutory Application No.1 of 2015 for condonation

of delay is dismissed. Consequently, the appeal is also dismissed on

the ground of delay.

11. There shall be no order as to costs.

 .........................................J.                 (KURIAN JOSEPH)

.......………………………………J.       (ROHINTON FALI NARIMAN)

New Delhi; September 22, 2016.        

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