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[Cites 53, Cited by 2]

Madras High Court

K.Veerasamy vs The Secretary To Government on 21 October, 2011

Author: V.Dhanapalan

Bench: V.Dhanapalan

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE:    21-10-2011

CORAM:

THE HON'BLE MR.JUSTICE V.DHANAPALAN

W.P.NO.2402 OF 2008 and
M.P.Nos.1 to 3 of 2008

K.Veerasamy							..	Petitioner

Versus

1.	The Secretary to Government,
	Home (Police-XIX) Department,
	Fort St.George,
	Chennai-600 009.

2.	The Competent Authority and
	District Revenue Officer,
	Office of the District Collector,
	Coimbatore.

3.	The Competent Authority and
	District Revenue Officer,
	Office of the District Collector,
	Dindigul.

4.	The Revenue Divisional Officer,
	Office of the RDO,
	Palani.

5.	The Inspector of Police,
	Economic Offences-II,
	Coimbatore.					..	Respondents

	This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari, to call for the records of the first respondent relating to its order passed under Section 3 of the TNPID Act, 1997 in G.O.Ms.No.1469-Home Police-XIX, dated 17.10.2007 and quash the consequential order of Tahsildar, Palani, dated 21.01.2008 in Na.Ka.No.30247/07 (for taking possession of the attached properties).
		
		For Petitioner:	Mr.Kalyanasundaram, SC for
						Mr.A.F.Denny
		
		For Respondent:	Mr.L.P.Shanmugasundaram, AGP


O R D E R

The petitioner has challenged the proceedings of the first respondent passed under Section 3 of the TNPID Act, 1997 in G.O.Ms.No.1469-Home Police-XIX, dated 17.10.2007 as well as the consequential proceedings of the Tahsildar, Palani, dated 21.01.2008 in Na.Ka.No.30247/07 in and by which, interim order of attachment was passed under Section 3 of the Tamil Nadu Protection of Interest of Depositors in Financial Establishment Act, 1997 (hereinafter referred to as 'TNPID Act') attaching the properties of the petitioner and others and possession of the said properties was taken over.

2. The brief facts, necessary for disposal of the writ petition, can be stated as under:

2.1. The petitioner along with his mother and friends, Thangaraj and Kanakaraj, started a partnership concern in the name and style, 'Sri Kandiamman Finance' at Coimbatore. The business of the said financial establishment is, to receive money from the public and lend the same to the public for interest and earning a profit for the establishment. According to the petitioner, after establishment of the institution, they collected deposits from the public and paid interest upto 11 lakhs. While so, one B.Indrani, one of the depositors, lodged a complaint on 4.11.2004 against the petitioner and others before the Inspector of Police, Economic Offences-II/5th respondent herein, alleging that after having collected the deposits from her, the petitioner's institution had failed to return the same on maturity. After completion of the investigation, final report has been filed and it was taken on file as C.C.No.24 of 2005 by the Special Court for TNPID Act and the same is pending. Aggrieved by the same, the petitioner moved this Court by filing Crl.O.P.No.6690 of 2010 for quashing the criminal proceedings pending in C.C.No.24 of 2005 on the file of the Special Court for TNPID Act. By order, 3.7.2010, this Court granted interim stay of the proceedings.
2.2. Be that as it may, based on the above criminal case, the first respondent, invoking Section 3 of TNPID Act, 1997, passed Government Order in G.O.Ms.No.1469, Home (Police-XIX) Department, dated 17.10.2007 ordering interim attachment of the properties of the partnership firm and transferring the control over the said properties to the second respondent. Pursuant to the said G.O., the second respondent instructed the 3rd and 4th respondents to take possession of the properties. Thereafter, the 4th respondent issued notice in Na.Ka.No.30247/2007, dated 21.1.2008, taking possession of the properties of the petitioner and others. Aggrieved by the same, the petitioner has come forward with the present writ petition.
3. The respondents have filed a counter affidavit, inter alia, stating that on 4.11.2004, one Tmt.P.Indrani, W/o Bhaskaran, gave a complaint to the 5th respondent, alleging that a sum of Rs.16,00,000/- deposited in the names of her daughter and husband, was not repaid by the petitioner. Based on the said complaint, the 5th respondent registered a case in Crime No.9 of 2004 under Section 5 of TNPID Act.

3.1. According to the respondents, during the investigation, it was found that the partners of the defaulted financial establishment, had received a sum of Rs.25,30,000/- as deposits from the public and with accrued interest, they are liable to pay a total sum of Rs.38,57,700/-. After receipt of the deposits, in the year 2002, the said financial establishment was closed without repaying the deposited amounts to the depositors. Thereafter, the 5th respondent filed a charge sheet before the Special Court for TNPID Act, Chennai, which was taken on file as C.C.No.24 of 2005. The concerned Investigating Officer identified the properties owned by the partners of the said defaulted financial establishment and sent proposals to the Government through the Inspector General of Police, Economic Offences Wing II, Chennai for issuing orders of ad-interim attachment of the said properties. On receipt of the said proposals, the Government being satisfied that the financial establishment of the petitioner and others is not likely to return the deposits to the depositors, ordered attachment of the properties under Section 3 of TNPID Act by issuing G.O.Ms.No.1469 Home (Police XIX) Department, dated 17.10.2007 and directed the competent authority and District Revenue Officer, Coimbatore, to pursue further action in accordance with the procedure laid down under Sub Sections (3) and (4) of Section 4 of the TNPID Act, 1997. Pursuant to the said G.O., the third respondent had delegated the power to Revenue Divisional Officer, Palani and Tahsildar, Palani vide his letter No.13752/07/A5, dated 8.1.2008. In order to take possession of the properties of the defaulters, the Tahsildar, Palani issued notice dated 21.1.2008 to the defaulters. The petitioner and his mother Padmavathi had refused to receive the notice. The properties were identified by the Inspector of Police, Economic Offences Wing II on 24.1.2008 and taken possession by the Tahsildar, Palani.

3.2. It is stated that the petitioner along with other partners had collected deposits from the poor general public alluring them with high rate of interest and at the time of maturity, they cheated and deceived the poor depositors without repaying their amounts. In such circumstances, the impugned proceedings have been initiated to safeguard the depositors. Therefore, the writ petition is not maintainable and is liable to be dismissed.

4. The learned Senior Counsel appearing for the petitioner would strenuously contend that the respondents 2 to 4 are not empowered directly to enforce the order of attachment passed by the first respondent, without complying with the mandatory provisions contained under Sections 4 and 7 of the TNPID Act, 1997. He would further contend that after passing the order under Section 3 of the TNPID Act in G.O.Ms.No.1469, dated 17.10.2007 ordering interim attachment of the properties of the petitioner and others, the concerned competent authority has to necessarily file an application for making the ad interim attachment absolute within 30 days from the date of receipt of Section 3 attachment order. However, in the present case, the second respondent has not filed any such application within the stipulated time and there was an unexplained delay of more than three years in not filing the said application. Therefore, the impugned consequential proceedings of the respondents 2 to 4 taking possession of the attached properties of the petitioner are liable to be quashed. In support of his submissions, the learned Senior Counsel relied on the following decisions, viz.,

(a) AIR 2004 Supreme Court 3068 (Gopal Sardar versus Karuna Sardar), wherein, the Hon'ble Supreme Court has held as under in para 9 and 10:

"9. An important departure is made in Section 29 sub-section (2) of the Limitation Act of 1963. Under the Indian Limitation Act, 1908 Section 29(2)(b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of Section 5 of the Limitation Act was specifically and in clear terms excluded, but under Section 29(2) of the present Limitation Act, Section 5 shall apply in case of special or local law to the extent to which it is not expressly excluded by such special or local law. In other words, application of Section 5 of the Limitation Act stands excluded only when it is expressly excluded by the special or local law. The emphasis of the argument by the learned counsel, who argued for the proposition that Section 5 of the Limitation Act is applicable to an application made for enforcement of rights of pre-emption under Section 8 of the Act was on the ground that the Act has not expressly excluded the application of Section 5 of the Limitation Act.
10. In Hukumdev Narain Yadav v. Lalit Narain Mishra5 a Bench of three learned Judges of this Court, dealing with election petition under the Representation of the People Act on the point of limitation for filing an election petition, after examining the provisions of the Representation of the People Act and Section 29(2) of the Limitation Act, has held thus: (SCC pp. 146-47, para 17) 17. ... Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117.
(b) 2009(5) SCC 791 (Commissioner of Customs and Central Excise versus Hongo India Private Limited and another), wherein, the Hon'ble Supreme Court in paras 34 to 37 as under:
"34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court.
35. It was contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.
37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.

5. On the other hand, the learned Additional Government Pleader appearing for the respondents submitted that the object of the Act is to ensure equitable distribution of the funds of the erring financial institutions by way of attaching the properties of such institutions and that the beneficial provision to safeguard the interest of the poor depositors who lost their hard-earned money found in the TNPID Act would indicate the direction to the competent authority to file necessary application under Section 4(3) of the Act to make the interim attachment absolute is only directory and not mandatory. He would further contend that the limitation of 30 days stipulated for filing an application to make interim attachment absolute under Section 4(3) of the Act specifically does not exclude the application of Limitation Act or devise the consequence of not filing the application within the time limit set out therein and in such circumstances, Limitation Act will come to rescue the situation and therefore, since the TNPID Act does not contain the provision which specifically excludes the application of Limitation Act as in the case of Arbitration and Conciliation Act, the application filed by invoking Section 5 of the Limitation Act is maintainable. In support of his submissions, the learned Additional Government Pleader relied upon the following decisions, viz.,

(a) (2004) 11 SCC 456 (L.S.Synthetics Ltd., versus Fairgrowth Financial Service Ltd., and another), wherein, it has been held in paras 32 to 42 as under:

32. The contention as regards the applicability of the Limitation Act must be considered having regard to the foregoing findings.
"33. The Limitation Act, 1963 is applicable only in relation to certain applications and not all applications despite the fact that the words other proceedings were added in the long title of the Act in 1963. The provisions of the said Act are not applicable to the proceedings before bodies other than courts, such as a quasi-judicial tribunal or even an executive authority. The Act primarily applies to the civil proceedings or some special criminal proceedings. Even in a tribunal, where the Code of Civil Procedure or Code of Criminal Procedure is applicable; the Limitation Act, 1963 per se may not be applied to the proceedings before it. Even in relation to certain civil proceedings, the Limitation Act may not have any application. As for example, there is no bar of limitation for initiation of a final decree proceedings or to invoke the jurisdiction of the court under Section 151 of the Code of Civil Procedure or for correction of accidental slip or omission in judgments, orders or decrees; the reason being that these powers can be exercised even suo motu by the court and, thus, no question of any limitation arises. (See Nityananda, M. Joshi v. LIC of India7, Hindustan Times Ltd. v. Union of India8 and Laxmibai4.)
34. Even no period of limitation is prescribed in relation to a writ proceeding.
35. S.N. Variava, J. in A.K. Menon, Custodian1 whereupon the learned Special Court has placed reliance, observed:
19. It is thus that the said Act lays down a responsibility on the Court to recover the properties. So far as monies are concerned, undoubtedly the particular coin or particular currency note given to a debtor would no longer be available. That however does not mean that the lender does not have any right to monies. What is payable is the loan i.e. the amount which has been lent. The right which the creditor has is not a right to recover the money. The creditor has the title/right in the money itself. An equivalent amount is recoverable by him and the title in any equivalent amount remains with the lender. Thus the property which a notified party would have is not the right to recover but the title in the money itself. Thus under Section 3(3) what would stand attached would be the title/right in the money itself. Of course what would be recoverable would be an equivalent of that money. Once the money stands attached then no application is required to be made by any parties for recovery of that money. It is then the duty of the court to recover the money. No period of limitation can apply to any act to be done by a court. Therefore in all such applications the only question which remains is whether on the date of the notification the right in the property existed. If the right in the property existed then irrespective of the fact that the right to recover may be barred by limitation there would be a statutory attachment of that property. Once there is a statutory attachment of that property the court is duty-bound to recover it for the purposes of distribution. There can be no period of limitation for acts which a court is bound to perform. In this case since the court is compulsorily bound to recover the money there can be no limitation to such recovery proceedings. To be remembered that Section 3(3) as well as Section 13 provide that provisions of the said Act would prevail over any other law. This would include the Limitation Act.
36. We respectfully agree with the said view.
37. We may, however, add that the attachment of the properties of the notified party being for specific purposes i.e. for the purpose of discharging his liabilities, the Special Court is bound to pass appropriate orders in relation thereto. A property once attached shall remain under attachment till an appropriate order is passed. It is, therefore, idle to contend that even in respect thereof the provisions of the Limitation Act would apply. The court while issuing directions to the Custodian in relation to the attached property for the purpose of discharge of the liability of the notified person must pass an appropriate order. So long the claims or other proceedings initiated before the Special Court as regards discharge of liability of the notified person continue, the attachment remains in force. A proceeding before the Special Court is not a suit for recovery of an amount. The proceedings before the Special Court are extraordinary in nature. Distribution of the assets of a notified person may take a long time but it would bear repetition to state because all the claims filed before the Special Court are disposed of, the property of the notified person stands attached. In other words, the provisions of the Limitation Act would inter alia apply only when a suit is filed or a proceeding is initiated for recovery of an amount and not where a property is required to be applied towards the claims pending before the Tribunal for the purpose of discharge of the liabilities of the notified person in terms of Section 11 of the said Act.
38. A Special Court having regard to its nature and functions may be a court within the meaning of Section 3 of the Indian Evidence Act, 1872 or Section 3 of the Limitation Act, 1963 but having regard to its scope and object and in particular the fact that it is a complete code in itself, in our opinion, the period of limitation provided in the Schedule appended to the Limitation Act, 1963, will have no application. For the applicability of Section 29(2) of the Limitation Act, the following requirements must be satisfied by the court invoking the said provision:
(1) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.
(2) Such prescription of the period of limitation under such special or local law should be different from the period of limitation prescribed by the Schedule to the Limitation Act, 1963.
39. In terms of the provisions of the said Act, no period of limitation is prescribed, evidently because Parliament thought it to be wholly unnecessary. Once the statutory operation relating to the attachment of the property belonging to a notified person comes into being, the duties and functions of the Special Court start. In relation to the duties and functions required to be performed by a court of law, no period of limitation need be prescribed. Furthermore, Section 13 of the said Act provides for a non obstante clause which has been used as a device to modify the ambit of the provisions of law mentioned therein or to override the same in the specified circumstances. (See T.R. Thandur v. Union of India9, SCC para 8.) The said Act does not provide for any period of limitation, the reasons wherefor have been noticed hereinbefore and in that view of the matter, in our considered opinion, Articles 19, 28 and 55 providing for period of limitation prescribed would have no application. Section 13 of the said Act provides for a non obstante clause which is of wide amplitude. In a case of conflict between the said Act and any other Act, the provisions of the former shall prevail.
40. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd.10 this Court held: (SCC pp. 74-75, para 10) 10.   The legislature being aware of the provisions of Section 22 under the 1985 Act still empowered only the Special Court under the 1992 Act to give directions to recover and to distribute the assets of the notified persons in the manner set down under Section 11(2) of the 1992 Act. This can only mean that the legislature wanted the provisions of Section 11(2) of the 1992 Act to prevail over the provisions of any other law including those of the Sick Industrial Companies (Special Provisions) Act, 1985.

It is a settled rule of interpretation that if one construction (sic constructions) leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted. If an interpretation is given that the Sick Industrial Companies (Special Provisions) Act, 1985, is to prevail then there would be a clear conflict. However, there would be no conflict if it is held that the 1992 Act is to prevail. 

41. A statute of limitation bars a remedy and not a right. Although a remedy is barred, a defence can be raised. In construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. A special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. The intent and purport of Parliament enacting the said Act furthermore must be given its full effect. We are, therefore, of the opinion that the provisions of the Limitation Act have no application, so far as directions required to be issued by the Special Court relating to the disposal of attached property, are concerned.

42. Only in the event, all the claims as provided for under Section 11 of the said Act are fully satisfied, the amount belonging to the notified person can be directed to be released in his favour or in favour of any other person."

b) (2001) 8 SCC 470 (Union of India versus Popular Construction Co.), wherein, the Hon'ble Supreme Court held as under in paras 11 to 16 as under:

"11. Thus, where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the specific inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded4.
"12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result.
13. Apart from the language, express exclusion may follow from the scheme and object of the special or local law:
[E]ven in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.3 (SCC p. 146, para 17)
14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need to minimize the supervisory role of courts in the arbitral process5. This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms:
5. Extent of judicial intervention. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
15. The Part referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act.
16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application in accordance with that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that-

where the time for making an application to set aside the arbitral award under Section 34 has expired  the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court.

This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act.

17. The appellant then sought to rely on a decision of this Court in Union of India v. Hanuman Prasad & Bros.6 to which one of us (Ruma Pal, J.) was a party. It is contended that the decision is an authority for the proposition that Section 5 of the Limitation Act applied to objections to an award under the 1996 Act. It is true that in the body of that judgment, there is a reference to the 1996 Act. But that is an apparent error as the reasoning clearly indicates that the provisions of Section 30 of the Arbitration Act, 1940 and not Section 34 of the 1996 Act were under consideration. In order to clarify the position, we have scrutinized the original record of Hanuman Prasad & Bros.6 decided on 6-3-2000. We have found that that was indeed a case which dealt with an award passed and challenged under the Arbitration Act, 1940. No question was raised with regard to the applicability of the Limitation Act to the 1940 Act. The only issue was whether the High Court should have refused to condone the delay of 2 months and 22 days in filing the objection to the award. This Court found that sufficient cause had been shown to condone the delay and accordingly set aside the decision of the High Court. This decision is as such irrelevant."

(c) (2001) 8 SCC 476 (Union of India versus Hanuman Prasad and Brothers), wherein, it has been held as under in para 3:

"3. In our view, on the facts and circumstances of the case it could not have been said that there was no sufficient cause for the appellant to get the delay of 2 months 22 days in filing objections under Section 30 of the Arbitration and Conciliation Act, 1996 condoned in the interest of justice. We also find that Section 5 of the Limitation Act was wrongly held inapplicable to the proceedings before the Court regarding making the award a rule of the court. Consequently, on these grounds, the impugned orders of the High Court as well as of the trial court are set aside. The trial court is directed to take up objections under Section 30 of the Arbitration and Conciliation Act, 1996 on record and to decide the same in accordance with law on merits within a period of two months from the receipt of a copy of the order at its end. We make it clear that we make no observation on the merits of the objections under Section 30 of the Act which have to be decided by the trial court on its own. As the delay of 2 months 22 days is condoned, we direct the appellant to pay Rs.5000 by way of special cost to the respondent within four weeks from today. In the meantime, Rs.24,37,868 lying deposited in the Court of learned District Judge, Jaipur shall be invested by learned District Judge in any nationalized bank initially for a period of six months awaiting decision in the remanded proceedings and the said deposit can be renewed for further suitable period if so required. In view of the present order, the earlier order dated 5-11-1999 directing the appellant to keep a net balance of Rs.7 lakhs in Bank Account No. D-45 with State Bank of India at NCRB Branch, Jaipur does not survive. The appeal is allowed accordingly with Rs.5000 special cost to be paid to the respondent."

(d) (1976) 1 SCC 392 (Mangu Ram versus Municipal Corporation of Delhi), wherein, the Honb'le Supreme Court has held as under in para 6:

"6. The question which arose for consideration in Kaushalya Rani case was apparently the same as in the present case, namely, whether the time limit of sixty days prescribed in sub-section (4) of Section 417 for making an application for special leave under sub-section (3) of that section could be extended by invoking Section 5 of the Indian Limitation Act, 1908. This Court held that sub-section (4) of Section 417 laid down a special period of limitation for an application by a complainant for special leave to appeal against an order of acquittal and in that sense, this rule of sixty days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications.
This Court pointed out that since the special rule of limitation laid down in sub-section (4) of Section 417 of the Code is a special law of limitation governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that Section 5 of the Limitation Act is wholly out of the way, in view of Section 29(2)(b) of the Limitation Act. The applicability of Section 5 of the Indian Limitation Act, 1908 was thus held to be excluded in determining the period of limitation of sixty days prescribed in sub-section (4) of Section 417 by reason of Section 29(2)(b) of that Act, which provided in so many terms that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the remaining provisions of this Act that is sections other than Sections 4, 9 to 18 and 22 shall not apply. Now, there can be no doubt that if the present case were governed by the Indian Limitation Act, 1908, this decision would wholly apply and the Municipal Corporation of Delhi would not be entitled to invoke the aid of Section 5 of that Act for the purpose of extending the period of limitation of sixty days prescribed in sub-section (4) of Section 417 for an application by a complainant for special leave to appeal against an order of acquittal. But the Indian Limitation Act, 1908 has clearly no application in the present case, since that Act is repealed by the Limitation Act, 1963 which came into force with effect from January 1, 1964 and the present case must, therefore, be decided by reference to the provisions of the Limitation Act, 1963.
7. There is an important departure made by the Limitation Act, 1963 insofar as the provision contained in Section 29, sub-section (2), is concerned. Whereas, under the Indian Limitation Act, 1908, Section 29, sub-section (2), clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded, Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, sub-section (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani case the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-section (4) of Section 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court."

6. Heard Mr.Kalyanasundaram, learned Senior Counsel appearing for the petitioner, and, Mr.L.P.Shanmugasundaram, Additional Government Pleader for the respondents and perused the material documents and relevant orders in question, coupled with the decisions relied upon by the learned counsel on either side.

7. A circumspection of the facts would reveal that the petitioner is a partner of the firm, called "Sri Kandiamman Finance" which was started by him along with his mother and friends for a business in finance to receive money from the public and lend the same to the public for interest and to earn profit for the establishment. Accordingly, they allegedly collected the deposits from the public and not repaid the amount. While so, on 4.11.2004 one B.Indrani, one of the depositors, lodged a complaint against the petitioner and others before the Inspector of Police, Economic Offences-II alleging that after having collected the deposits from her, the petitioner failed to return the deposits on maturity. On completion of the investigation, a final report had been filed, which was taken on file in C.C.No.24 of 2005 by the Special Court for TNPID Act and the same is pending. Aggrieved by the same, the petitioner moved this Court by filing Crl.O.P.No.6690 of 2010 for quashing the criminal proceedings pending in the above said C.C.No.24 of 2005 on the file of the Special Court for TNPID Act and this Court, by an order dated 03.07.2010, granted interim stay of the proceedings. However, the first respondent proceeded with the matter invoking Section 3 of TNPID Act and passed an order in G.O.Ms.No.1469, dated 17.10.2007 ordering interim attachment of the properties of the firm and transferring the control over the said properties to the second respondent. Pursuant to the said order, the second respondent instructed the respondents 3 and 4 to take possession of the properties and thereafter, a notice was issued by the 4th respondent on 21.1.2008 taking possession of the properties of the petitioner. The said proceedings have been challenged in this writ petition.

8. The respondents took a plea that the concerned Investigating Officer identified the properties owned by the petitioner firm and sent proposals to the Government for ordering attachment of the said properties. Accordingly, the Government passed the order in G.O.Ms.No.1469 under Section 3 of the Act on 17.10.2007 and directed the competent authority and District Revenue Officer to pursue further action in accordance with the procedure laid down under Sub Section (3) and (4) of Section 4 of the Act. Accordingly, the third respondent delegated the power to Revenue Divisional Officer, Palani and Tahsildar, Palani in his letter dated 8.1.2008 to take possession of the properties of the defaulters and a notice was issued on 21.1.2008 to the defaulters. However, the petitioner and his mother had refused to receive the notice. The properties were identified by the Inspector of Police, E.O.II on 24.1.2008 and possession was taken by the Tahsildar.

9. To quash the impugned proceedings of the first respondent in G.O.Ms.No.1469, dated 17.10.2007 ordering attachment of the properties of the petitioner and the consequential order of Tahsildar, Palani, dated 21.01.2008 taking possession of the properties, a ground is raised by the petitioner that under Section 4(3) of the Act, the competent authority shall apply within 30 days to the Special Court constituted under the Act to make the ad-interim order of attachment absolute and since no such application was made, the attachment proceedings pursuant to the order dated 17.10.2007 have lapsed and as per Section 4 read with Section 7 of the Act, further proceedings cannot be proceeded with and hence, the notification is liable to be quashed, for having become unenforceable and the consequential decision taken over pursuant to the impugned notice of the Tahsildar, dated 21.1.2008 is also liable to be quashed.

10. To examine the position as to whether there is any violation of Section 4(3) of the Act, it is to be seen that the first respondent passed G.O.Ms.No.1469 under Section 3 of the Act on 17.10.2007 and thereafter, the Tahsildar issued notice regarding taking over possession of the properties on 21.01.2008. It is also to be noted that this Court granted interim stay on 31.01.2008 for a period of four weeks which expired on 28.2.2008 and thereafter, it was not extended. The petitioner claimed that the Section Officer of the first respondent has signed G.O.Ms.No.1469 on 26.10.2007 and the proceedings of the DRO were issued on 13.11.2007 and therefore, according to the petitioner, in between 13.11.2007 and 21.01.2008, there has been a clear two months time within which, an application under Section 4(3) of the Act for making the order of interim attachment absolute could have very well been made, however, the respondents have not made any such application within the time as contemplated under Section 4(3), which specifically stipulates that the competent authority shall apply within 30 days to the Special Court constituted under TNPID Act for making ad-interim attachment order absolute.

11. It is also vehemently contended on behalf of the petitioner that there was an inordinate delay of 1249 days (which was not pleaded in the first instance, but was argued and put in written submissions) and therefore, there is non-compliance of the provisions to make the order of attachment absolute within the time frame as stipulated under the provisions of the Act.

12. However, this position has been disputed by the respondents stating that the object and reasons would amply pave a way for ensuring an equitable distribution of the funds of the erring financial institutions by attaching the property of such institutions. Therefore, the legislation is nothing but a socially and welfare oriented enactment and as per Section 13 of the Act, the procedure to be followed is as per the Code of Criminal Procedure though the provision for ordering attachment and release of attachment are available. The Act is a special legislation and the offences are liable to tried by the specially appointed judge at the level of the District Judge. However, it cannot be termed as self contained Act wherein all the procedure and functions are defined. For enforcement of obligation under the Act, it does not require any support from any other Act. The TNPID Act is also a beneficial legislation to take care of interest of the public at large. Originally, there was no provision in the said Act for attaching the properties of the persons, who borrowed money from the financial institutions and sale of the attached property in public auction and for the equitable distribution of the sale proceeds to the depositors. In order to overcome the above short comings, Tamil Nadu Act 30/2003 was introduced to amend the TNPID Act. Under Section 3 of the Act, where the Government have reason to believe that any financial establishment is going in a calculated manner with an intention to defraud the depositors and they are satisfied that such financial establishment is unlikely to return the deposits or to make payment of interest, the Government has been given the discretion, with a view to protect the interest of depositors of such financial establishments, to pass an ad interim order of attachment of the money and other property alleged to have been procured either in the name of the financial establishment or in the name of any other person from and out of the deposits collected by the financial establishment. The competent authority appointed under the Act has been directed to approach the Special Court constituted under the Act within 30 days from the date of receipt of the aforesaid order passed by the Government for making the order absolute.

13. Applying the above principles to the present dispute, it is amply clear that Section 13 descriptively states that the Act follows the Code of Criminal Procedure and therefore, the said Act is not self contained Act but depending upon the other law for disposal of the cases. Similarly on a careful consideration of Section 4 of the Act, it is evident that Section 4(3) stipulating 30 days' time does not specifically exclude the application of Limitation Act or devise the consequence of not filing the application within the time limit stipulated therein. In the absence of such provision which does not disclose the consequence of not filing application within the time stipulated, Section 29 of the Limitation Act comes for rescue, which specifically mentions two circumstances under which the said provision could be utilized. Firstly, there must be a provision for period of limitation under any special law or local law in connection with the suit, appeal or application. Secondly, such prescription of limitation under the special law or local law should be different from the limitation period prescribed under the Limitation Act and thereby expressly excludes the provisions contained under Section 4 to 24 of the Limitation Act.

14. Further, it is to be seen that section 4(3) fully qualifies the first qualification as the period of limitation has been prescribed under the Act whereas the second qualification that the period of limitation as Limitation different from the one as per the schedule of the Limitation Act but the same does not expressly excludes under Section 4(3) of the Act. Therefore, limitation Act is applicable and application under Section 5 of the Limitation Act is absolutely maintainable.

15. Though an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, it is to be seen, whether the provision of this section is expressly excluded in the case of reference to the High Court. In this regard, the learned Senior Counsel for the petitioner cited a decision of the Hon'ble Supreme Court rendered in "Commissioner of Customs and Central Excise Versus Hongo India Private Limited and another" ((2009) 5 SCC 791), wherein, it was held in regard to applicability of Central Excise Act and the Limitation Act, the nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.

16. Per contra, the learned Additional Government Pleader appearing for the respondents could elicit a similar proposition taking aid of the Arbitration and Conciliation Act, 1996. He pointed out that the said Act is self-contained and a special law. The procedure under which the said Act required to be enforced has been well contained under the Act. Section 34 of the Arbitration Act stipulates 90 days for filing an appeal and further states that in the absence of filing any appeal within the said 90 days due to the reasons beyond the control of the party seeking to appeal the award can do so within 30 days upon expiry of the original period of 90 days as prescribed. Therefore, the Arbitration Act is containing the proviso under Section 34 that the different period of limitation prescribed and the same specifically excludes the invocation of Section 4 to 24 of the Limitation by stating that further 30 days time alone available for filing beyond the original period of 90 days. In the instant case, as the TNPID Act does not contain the provision which specifically excludes the application of Limitation Act as in the case of Arbitration and Conciliation Act, invoking Section 5 of Limitation Act is justified. In support of the above proposition, the learned Addl.Government Pleader relied upon the decisions, viz.,, 1976 (1) SCC 392, 2001(8) SCC 470, 2006(4) MLJ 714 and 2004(11) SCC 456, cited supra.

17. The above proposition would eventually conclude that if the Special Act does not contain the provision which specifically excludes the application of the Limitation Act as in the case of Arbitration and Conciliation Act, invoking Section 5 of Limitation Act is justifiable. Even from the view of the decision relied upon by the learned Senior Counsel for the petitioner that even in a case where the Special law does not exclude Section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.

18. The Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 (Tamil Nadu Act 44 of 1997) has been amended by Tamil Nadu Act 24 of 1999 and further by Tamil Nadu Act 30 of 2003 amending various provisions by substitution, addition and deletions and thus the original Act has been re-enacted. Tamil Nadu Act 44 of 1997 provides quick remedies for recovery of deposits from such of the financial establishments within the definition of Section 2(3) of the Act who fail to return the deposits with interest after their maturity to the depositors or fail to render services for which the deposits have been made. The Government is empowered to pass an ad interim order of attachment of properties of the defaulted financial establishments and the Special Courts are empowered to make absolute the said order. The competent authorities are given powers to control the said properties. The Government, the competent authority and the Special Court are the designated authorities whose functions are earmarked to initiate recovery proceedings and safeguard the interests of the depositors if those financial establishments, as defined, commit default in returning the deposits after maturity. The aim of the Act is to protect the interest of the depositor's money without driving the depositors to take civil action against the defaulting financial institutions, as the said exercise is cumbersome in addition to time consuming. Therefore, in order to achieve the above object, the Act is specifically provided to safeguard the interests of the innocent depositors and such object cannot be defeated in any form.

19. It is to be noticed that once the property is ordered to be attached, it shall remain under attachment till an appropriate order is passed consequently. The main purpose for ordering attachment by invoking Section 4(3) of the Act is for the purpose of discharge of the liability of the notified person who defaulted to pay the money to the depositors. Therefore, it can be stated that so long as the claims or other proceedings initiated before the Special Court in order to safeguard the interests of the innocent depositors for discharge of liability of the notified person continue, the attachment remains in force and therefore, such proceedings before the Special Court are extraordinary in nature. As such, once there is statutory attachment of the property, the court is duty-bound to make it absolute for the purposes of distribution. There can be no period of limitation for the acts which a court is bound to perform.

20. The point of delay of 1249 days in initiating the proceedings raised by the petitioner has been disputed by the respondents, stating that subsequent to the order passed by the first respondent in G.O.Ms.No.1469, dated 17.10.2007, the District Revenue Officer has directed the Tahsildar, Palani to attach the properties of the petitioner and accordingly, on 21.1.2008, Tahsildar issued the impugned notice regarding taking over of possession of the properties and therefore, there was a delay of only 94 days in between the above two proceedings.

21. Looked at from any angle, it can be seen that the competent authority has examined the Inspector of Police and recorded his statement and collected necessary documents from the concerned authorities before making an application to the Special Court seeking to make the interim order of attachment absolute. Therefore, the competent authority has explained the reasons for the delay that has occasioned on account of the enquiry and collection of relevant documents before embarking upon to file an application under Section 4(3) of the TNPID Act. Therefore, in the light of the above stated circumstances, which prevailed for filing such an application, it can be construed that the competent authority has satisfactorily moved the Special Court for making the interim order of attachment absolute in order to achieve the object contemplated under the Act.

22. For the foregoing reasons and discussion and taking into account the avowed object of the Act which safeguards the interests of the depositors who lost their money at the hands of the financial establishments, such as the one of the petitioner herein, the Writ Petition deserves no merit consideration and, accordingly, the same is dismissed. No costs. Consequently, connected M.Ps. are closed.

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