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2016 DIGILAW 3998 (ALL)

NAUBAHAR SINGH v. STATE OF U. P.

2016-12-13

SHASHI KANT, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Head Sri Atul Mehra, learned counsel for the petitioners and learned Standing Counsel for the State of U.P. 2. This writ petition under Article 226 of Constitution of India has been filed by four petitioners (petitioner No. 2 having died during pendency of the writ petition, is substituted by his legal heirs), challenging recovery of Rs. 6,96,222.50/- in respect whereto impugned citation dated 24.4.2002 has been issued by Tehsildar, Nahtor, District - Bijnor. They have also challenged recovery certificate dated 4.4.2002, issued by U.P. Financial Corporation (hereinafter referred to as ‘U.P.F.C.’), requesting Collector, Bijnor to recover Rs. 8,98,222.50/- as arrears of land revenue, being outstanding amount of loan advanced by U.P.F.C., and recovery charges of Rs. 69,622.25/-, from petitioners. 3. Brief facts as stated in writ petition are that Ram Pal Singh (late) S/o Shadi Singh (late) constituted a partnership firm in the name and style of M/s Gramin Udhyog Shala Cane Crusher for manufacturing khandsari sugar. It obtained loan of Rs. 78,500/- in the year 1972-73, repayable in 10 years to U.P.F.C. Loanee committed default and could not repay instalments in time. Recovery certificate was issued against petitioners and the firm in the year 1979 to recover outstanding dues at that time as arrears of land revenue. Pursuant thereto, plant and machinery of manufacturing unit of firm was auctioned in 1980 and land and building was auctioned in 1981. Thereafter, petitioners did not hear anything. It is only on 4.4.2002, recovery certificate has been issued by U.P.F.C. pursuant whereto impugned citation has been issued by Tehsildar. 4. The recovery is challenged on various grounds taken in the writ petition but during course of arguments, it is confined to only one aspect, that it is barred by time. 5. On behalf of respondent No. 4, U.P.F.C. counter-affidavit has been filed sworn by Pankaj Kumar Saxena, Deputy Senior Manager (Law). It has given various details in respect of loan and subsequent events. It is said that in-lieu of loan advanced to the firm, M/s Gramin Udhyog Shala Cane Crusher, petitioners executed mortgage deed dated 6th January, 1973. In order to recover outstanding dues, recovery certificate was issued on 30th March, 1980, in furtherance whereof from Tehsildar, Dhampur, District - Bijnor, U.P.F.C. received Rs. 9551.90 and Rs. 17,956/- on 11th March, 1981 and 16th October, 1981 respectively. In order to recover outstanding dues, recovery certificate was issued on 30th March, 1980, in furtherance whereof from Tehsildar, Dhampur, District - Bijnor, U.P.F.C. received Rs. 9551.90 and Rs. 17,956/- on 11th March, 1981 and 16th October, 1981 respectively. Petitioners were requesting U.P.F.C. to grant more time to clear the dues, but they failed to get time. Limitation Act, 1963 (hereinafter referred to as “Act, 1963') has no application in the aforesaid recovery and recovery certificate dated 4.4.2002, issued under Section 3 of U.P. Public Money (Recovery of Dues) Act, 1972 (hereinafter referred to as ‘U.P. Act, 1972’), is in terms of mortgage deed dated 6th January, 1973. 6. In the rejoinder-affidavit, petitioners have reiterated what they have said in writ petition. 7. Assailing impugned recovery, Sri Atul Mehra, counsel for petitioners pressed only one point that recovery in question is barred by limitation. In this regard he placed reliance on Apex Court’s judgment in State of Kerala and others v. V.R. Kalliyanikutty and another, AIR 1999 SC 1305 ; and a Division Bench judgment of this Court in Narendra Kumar and another v. Collector, Bulandshahar and others, (2004) 2 UPLBEC 2037 . 8. The issue of limitation raised by learned counsel for petitioners has to be examined in the light of following questions: (i) whether Act, 1963 is applicable to recovery proceedings of certain dues as arrears of land revenue through Revenue Authorities; (ii) whether there is a limitation prescribed for such recovery proceedings; (iii) whether bar under Section 3 of Act, 1963 shall be applicable to Financial institutions or authorities like U.P.F.C. or Collector in proceeding to recover dues under U.P. Act, 1972? 9. All these questions we propose to consider together. 10. There are some basic principles with regard to limitation. It is a plea in defence. Where limitation apply and period has exhausted, the remedy shall stand barred but right will not stand barred. For this purpose, it would be appropriate to have historical evolution of principles and provisions pertaining to limitation. 11. Nature of the statute on limitation has been considered in C. Beepathuma and others v. Valasari Shankaranarayana Kadambolithaya and others, AIR 1965 SC 241 and it says: “There is no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it.” 12. 11. Nature of the statute on limitation has been considered in C. Beepathuma and others v. Valasari Shankaranarayana Kadambolithaya and others, AIR 1965 SC 241 and it says: “There is no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it.” 12. Before the British, during the period when Muslims ruled the Country, it appears that personal laws governed all matters. Muslim law does not recognize limitation; while in Hindu personal laws, on certain aspects, in different schools, some provisions for limitation were prescribed which are not common to all Hindus. Hindu Law recognizes both prescription and limitation while Muslim jurisprudence recognises neither of them. In some of Smritis a period of 20 years was prescribed for acquisition of title by prescription. It appears that since agriculture was the main occupation of people, Smritis concentrated more on land and rights therein. 13. Thus, in ancient scriptures applicable to natives of this land before entry of Muslims and Christians, principles of prescription of limitation were recognized vis-a-vis property, i.e., land and rights thereon. In Christianity, attempt to enforce payment of a debt which, time and misfortune has rendered the debtor unable to discharge, was forbidden. 14. Before 1857 there were Regulations framed by East India Company governing Courts in three Presidencies of Fort William, Madras and Bombay. Courts set up by British Government as also three Supreme Courts adopted English law of limitation. The three Presidencies were governed by Regulations, namely, Bengal; Regulation III of 1793, Regulation II of 1805, Regulation VIII of 1831, Madras; Regulation II of 1802, Bombay; Regulation I of 1800 and Regulation V of 1827. Later on, they came to be governed by Act 1 of 1845, Act 12 of 1848 and Act 11 of 1859. Interestingly, Regulations did not apply to certain Non-Regulation Provinces, like Punjab and Oudh. It is in these circumstances, after Crown took over Indian Territory from East India Company in 1857, it enacted Act 14 of 1859. 15. Cause of action with respect to the statute of Limitation, as applicable in England, in one of the earliest cases, came to be considered in 1849 as to when it would run. It is in these circumstances, after Crown took over Indian Territory from East India Company in 1857, it enacted Act 14 of 1859. 15. Cause of action with respect to the statute of Limitation, as applicable in England, in one of the earliest cases, came to be considered in 1849 as to when it would run. Privy Council in The East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43, held that the Statute runs from the time of breach, for that constitutes the cause of action. With reference to East India Company, it observed that statute of limitation was extended to India by Indian Act No. XIV of 1840. The appeal against Supreme Court of Judicature at Fort William in Bengal (Calcutta) was allowed by Privy Council. It also observed therein, if the matter would have been tried by Hindu law, the limitation of suits, under Hindu law, would have been twelve years. 16. The first codified statute was Act No. XIV of 1859, enacted to amend and consolidate laws relating to limitation of suits. This Act received the assent of Governor General on 5th May, 1859. It was repealed by Act No. IX of 1871, Act XV of 1877 and thereafter by Act IX of 1908 (hereinafter referred to as “Act, 1908”). Presently, even Act, 1908 has been repealed and Courts in India are now governed by Act, 1963. 17. Section I of Act XIV of 1859 says that no suit shall be maintained in any Court of Judicature within any part of British territories in India in which this Act shall be in force, unless the same is instituted within the period of limitation, hereinafter made applicable to a suit of that nature, any Law or Regulation to the contrary notwithstanding. The territory upon which the said Act was made operative, was provided in Section XXIV as under: “XXIV. This Act shall take effect throughout the Presidencies of Bengal, Madras, and Bombay, including the Presidency Towns and the Straits Settlements; but shall not take effect in any Non-Regulation Province or place until the same shall be extended thereto by public notification by the Governor-General in Council or by the Local Government to which such Province or place is subordinate. This Act shall take effect throughout the Presidencies of Bengal, Madras, and Bombay, including the Presidency Towns and the Straits Settlements; but shall not take effect in any Non-Regulation Province or place until the same shall be extended thereto by public notification by the Governor-General in Council or by the Local Government to which such Province or place is subordinate. Whenever this Act shall be extended to any Non-Regulation Province or place by the Governor-General in Council or by the Local Government to which such Province or place is subordinate, all suits which, within such Province or place, shall be pending at the date of such notification, or shall be instituted within the period of two years from the date thereof, shall be tried and determined as if this Act had not been passed; but all suits to which the provisions of this Act are applicable that shall be instituted within such Province or place after the expiration of the said period, shall be governed by this Act and by no other law of limitation, any Statute, Act, or Regulation now in force notwithstanding.” 18. Though Act No. XIV of 1859 was drafted in a language much more precise than the loose phraseology of earlier Regulations, but Privy Council in The Delhi and London Bank v. Orchard, ILR 3 (1876) Calcutta 47 (PC), observed it as an “inartistically drawn statute”. 19. Act IX of 1871 extended the scope and made provisions relating to limitation to suits, appeals and certain applications to Courts. It received the assent of Governor General on 24th March, 1871. 20. Some of the feature of Act IX of 1871 are: (a) Section 3 defines term ‘minor means a person who has not completed his age of eighteen years; (b) Section 7 deals with legal disability, Section 9 provides continuous running of time, Sections 23 and 24 deals with continued cause of action or renewal of cause of action and Section 29 for the first time provides for extinction of rights of a person in respect to any land or hereditary office: “7. If a person entitled to sue be, at the time the right to sue accrued, a minor, or insane, or an idiot, he may institute the suit within the same period after the disability has ceased, or (when he is at the time of the accrual affected by two disabilities) after both disabilities have ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the second schedule hereto annexed. When this disability continues upto his death, his representative in interest may institute the suit within the same period after the death as would otherwise have been allowed from the time prescribed therefor in the third column of the same schedule. Nothing in this section shall be deemed to extend, for more than three years from the cessation of the disabilities or the death of the person affected thereby, the period within which the suit must be brought” “9. When once time has begun to run, no subsequent disability or inability to sue stops it : Provided that where letters of administration to the stage of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues.” “23. In the case of a suit for the breach of a contract, where there are successive breaches, a fresh right to sue arises, and a fresh period of limitation begins to run, upon every fresh breach; and where the breach is a continuing breach, a fresh right to sue arises, and a fresh period of limitation begins to run, at every moment of the time during which the breach continues. Nothing in the former part of this section applies to suits for the breach of contracts for the payment of money by instalments, where, on default made in payment of one instalment, the whole becomes due.” “24. In the case of a continuing nuisance a fresh right to sue arises, and a fresh period of limitation begins to run at every moment of the time during which the nuisance continues.” “29. At the determination of the period hereby limited to any person for instituting a suit for possession of any land or hereditary office, his right to such land or office shall be extinguished.” 21. At the determination of the period hereby limited to any person for instituting a suit for possession of any land or hereditary office, his right to such land or office shall be extinguished.” 21. Drafting of this statute received better observations from Privy Council in Maharana Futtehsangji v. Dessai Kullianraiji, (1873) LR 1 IA 34 and it commented as a “more carefully drawn statute”. 22. This Act gave, for the first time, some recognition to the doctrine of prescription by the Legislative Council of India, viz. the doctrine of extinctive prescription as to land and hereditary offices, and of positive prescription as to easements. It lived short and was replaced by Act 15 of 1877 which extended principle of extinctive prescription to movable property and the principle of positive or acquisitive prescription to profits a prendre. 23. Law of Prescription prescribes the period at the expiry of which not only judicial remedy is barred but a substantive right is acquired or extinguished. A prescription by which a right is acquired, is called an “acquisitive prescription”. A prescription by which a right is extinguished is called “extinctive prescription”. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies that the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time. 24. Then came Act XV of 1877, which received assent of Governor General on 19th July, 1877 and came into force on 1st October, 1877. 25. Section 2 of Act XV of 1877 makes it very clear that the right to sue if already barred shall not revive by said enactment. It reads as follows: “2. 24. Then came Act XV of 1877, which received assent of Governor General on 19th July, 1877 and came into force on 1st October, 1877. 25. Section 2 of Act XV of 1877 makes it very clear that the right to sue if already barred shall not revive by said enactment. It reads as follows: “2. All reference to the Indian Limitation Act, 1871, shall be read as if made to this Act; and nothing herein or in that Act contained shall be deemed to affect any title acquired, or to revive any right to sue barred, under that Act, or under any enactment, thereby repealed; and nothing herein contained shall be deemed to affect the Indian Contract Act, Section 25.” 26. Section 4 makes it obligatory for Court to dismiss a suit if presented after expiry of period of limitation. Section 7 deals with the legal disability which is virtually pari materia with earlier provisions of 1871 Act though slightly worded differently: “7. If a person entitled to institute a suit or make an application be, at the time from which the period of limitation is to be reckoned. A minor, or insane, or an idiot, he may institute the suit or make the application within the same period, after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the second schedule hereto annexed. When he is, at the time from which the period of limitation is to be reckoned, affected by two such disabilities, or when, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so prescribed. When his disability continues up to his death, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so prescribed. When such representative is at the date of the death affected by any such disability, the rules contained in the first two paragraphs of this section shall apply. When such representative is at the date of the death affected by any such disability, the rules contained in the first two paragraphs of this section shall apply. Nothing in this section applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.” 27. There were several amendments in the above statute and ultimately it was repealed and replaced by Act 9 of 1908. 28. Act, 1908 came into force on 1st January, 1909. It continued with the provision imposing obligation upon Court to dismiss a suit, if, while it is instituted, is already barred by limitation vide Section 23. 29. The doctrine of limitation is founded on considerations of public policy and expediency. It does not give a right where there exist none, but to impose a bar after a certain period to the remedy for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies in Courts of law if there is any infringement of their right and to prevent and prohibit stale claims. It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such remedy for an immemorial length of time. Rules of limitation do not destroy rights of the parties and do not create substantive rights if none existed already. However, there is one exception i.e. Section 28 of Act, 1908, which provides that at the determination of period prescribed for instituting suit for possession of any property, his right to such property shall stand extinguished and the person in possession, after expiry of such period, will stand conferred title. The law of limitation is enshrined in the maxim “interest reipublicae ut sit finis litium” (it is for the general welfare that a period be part to litigation). 30. The statute of limitation, thus, is based upon two broad principles. First, there is a presumption that a right not exercised for a long time is non existent. Where a person has not been in possession of a particular property for a long time, the presumption is that he is not the owner thereof. The owners are usually possessors and possessors are usually owners. First, there is a presumption that a right not exercised for a long time is non existent. Where a person has not been in possession of a particular property for a long time, the presumption is that he is not the owner thereof. The owners are usually possessors and possessors are usually owners. Possession thus being normally evidence of ownership. Longer the possession has continued, the greater is its evidentiary value. The law therefore has deemed it expedient to confer upon such evidence of possession for a particular time, a conclusive force. 31. In Motichand v. Munshi, AIR 1970 SC 898 , Court noticed the maxim vigilantibus non dormientibus jura subventiunt (the law assists the vigilant not those who sleep over their rights). Though there is a general principle ubi jus ibi remedium i.e. where there is a legal right there is also a remedy, but there are certain exceptions to this general rule. 32. Mere expiry of limitation could have extinguished remedy but the principle embodied in Section 28 extinguishes the right also and thereby makes the said general principle inapplicable. Once the right of getting possession extinguished it cannot be revived by entering into possession again [See Salamat Raj v. Nur Mohamed Khan, (1934) ILR 9 Lucknow 475; Ram Murti v. Puran Singh, AIR 1963 Punjab 393; Nanhekhan v. Sanpat, AIR 1954 Hyd 45 (FB) and Bailochan Karan v. Bansat Kumari Naik, 1999 (2) SCC 310 ]. 33. Act, 1908 has been substituted by Act, 1963. 34. Act, 1963 in its “Introduction” part itself says that it is an Act to consolidate and amend law of limitation of suits and other proceedings and for the purposes connected therewith. 35. Bar of limitation under Section 3 is on the Court. It says that subject to provisions of Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed even if no limitation has been set up as a defence. 36. U.P.F.C., therefore, in common law could not have filed suit after limitation provided for recovery of outstanding dues from Company or guarantors has expired. However, here we are concerned with procedure of recovery under U.P. Act, 1972. 37. It has been held time and again that Section 3 of Act, 1963 applies to Courts and not to other bodies, such as quasi judicial Tribunal or even Executive authorities. 38. However, here we are concerned with procedure of recovery under U.P. Act, 1972. 37. It has been held time and again that Section 3 of Act, 1963 applies to Courts and not to other bodies, such as quasi judicial Tribunal or even Executive authorities. 38. In A.S.K. Krishnappa Chettiar v. S.V.V. Somiah, AIR 1964 SC 227 , in para 13 of judgment, Court said: “The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to Courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus, for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article. For the same reasons the provisions of Sections to 28 of Limitation Act cannot be applied to situations which fall outside their purview. These provisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them.” (emphasis added) 39. In Town Municipal council, Athani v. Presiding Officer, Labour Court, Hubli and others, AIR 1969 SC 1335 , in para 12 of judgment, Court has observed, “... we do not think that this addition necessarily implies that the Limitation Act is intended to govern proceedings before any authority, whether executive or quasi-judicial, when, earlier, the old Act was intended to govern proceedings before Civil Courts only.” 40. we do not think that this addition necessarily implies that the Limitation Act is intended to govern proceedings before any authority, whether executive or quasi-judicial, when, earlier, the old Act was intended to govern proceedings before Civil Courts only.” 40. Court held that application under Section 33C(2) of Industrial Disputes Act, 1947 before Labour Court would not attract limitation under Act, 1963. 41. In Nityananda M. Joshi v. Life Insurance Corporation of India, AIR 1970 SC 209 , Court held that in view of Section 4 and 5 of Act, 1963 it would be clear that under the scheme it only deals with applications to Courts. The “Labour Court” is not a “Court” within the meaning of Act, 1963 and, therefore, an application under Section 33C(2) of Industrial Disputes Act, 1947 cannot be held barred under Article 137 of Act, 1963 on the plea that claim was for a period beyond three years. 42. Here we may also refer to a Single Judge judgment of this Court in Hari Raj Singh v. Sanchalak Panchayat Raj U.P. and others, AIR 1968 All 246 , wherein plea of limitation in respect of claim of arrears of salary of a Government Servant was raised in defence by State Government. Repealing it, this Court said that Act, 1963 is a complete Code in itself and outside it, there is no law of limitation except specific provisions in specific Statutes. Section 3 makes it clear that Act, 1963 applies only to Suits or Appeals or Applications filed in Courts. It has no application to any proceedings outside the law Court. Act, 1963 is a procedural law. It bars a suit for enforcement of a right but does not extinguish the right itself except where a case is governed by Section 28 of Act, 1963. Relying on Apex Court’s decision in Bombay Dyeing and Manufacturing Co. v. State of Bombay, AIR 1958 SC 328 , Court said that Statute of limitation bars remedy and does not extinguish debt. Lapse of time does not extinguish right of a person. Having said so, in para 15, Court said: “15. Since limitation bars a suit for the enforcement of a right but does not destroy the right itself a defendant in a suit can set up a right in defence though he could not have enforced that right by a suit. There is no limitation against a defence. Having said so, in para 15, Court said: “15. Since limitation bars a suit for the enforcement of a right but does not destroy the right itself a defendant in a suit can set up a right in defence though he could not have enforced that right by a suit. There is no limitation against a defence. This again indicates how limited is the scope of the law of limitation even in suits.” 43. It also considered meaning of the words “time barred” and in para 16 of judgment said that the concept “time-barred” cannot be extended to proceedings outside law Courts. The words “time barred’ only means that a suit for enforcement of a right is no longer available. If a Government servant files a civil suit for recovery of his salary after expiry of prescribed period of limitation, it shall be dismissed by Court as time-barred. But the right is not extinguished and all other lawful means of enforcing the claim are not affected by limitation. 44. In Mohd. Ashfaq v. State Transport Appellate Tribunal U.P. and others, (1976) 4 SCC 330 , Court considered a similar provision which required filing of renewal application within fifteen days which could be extended but not beyond 15 days. Court held that Section 5 of Act, 1963 is not applicable since matter was covered by Section 58 (2) and (3) of Motor Vehicles Act 1939. It further held, if application for renewal is beyond time by more than fifteen days, authority shall not be entitled to entertain it or in other words, it shall have no power to condone delay. There being express provision for making application for renewal, condonable only if it is not more than 15 days, the provision expressly excludes not only power of condonation of delay under Section 5 but being special enactment, the said period, even otherwise, cannot be extended. Court held that the provision may look harsh, but in the scheme of Statute, legislature has provided the same and it should not be disturbed by Court. 45. Court held that the provision may look harsh, but in the scheme of Statute, legislature has provided the same and it should not be disturbed by Court. 45. In Sushila Devi v. Ramanandan Prasad and others, AIR 1976 SC 177 , Court said that provisions of Act, 1963 apply only to proceedings in “Courts” and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Code of Civil Procedure. 46. In L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. and another, AIR 2005 SC 1209 , it was held that provisions of Act, 1963 have no application so far as directions required to be issued by Courts under Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. It held: “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 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.” (emphasis added) 47. In Damodaran Pillai v. South Indian Bank Ltd., (2005) 7 SCC 300 , Court while considering, whether provisions of Section 5 of Act, 1963 would be applicable to the proceedings under Order 21 of Code of Civil Procedure, observed: “It is also trite that the Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power.” 48. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power.” 48. A Division Bench of this Court (in which I was also a member) in M/s. Vimal Organics Ltd. v. State of U.P. and others, 2008(3) ADJ 91 (DB), considering a similar issue in respect of appeals under Section 13 of Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as “Act, 1977”) read with Rule 9 of the Water (Prevention and Control of Pollution) Cess Rules, 1978 (hereinafter referred to as “Rules, 1978”), in para 18 and 19 of judgment, said: “18. The period of limitation, as contended by learned counsel for the petitioner, cannot be said to be a part of procedure only, as an universal proposition. Rather it would depend upon relevant provisions of the statute and the consequences flowing thereof, i.e., as a result of expiry of the period of limitation. In many cases, it may result in accrual of substantive rights to the other side and in those cases, provisions pertaining to limitation cannot be said to be directory but have to be held mandatory. For example, under Section 6 of Land Acquisition Act, 1894, a declaration has to be made within one year from the date of notification under Section 4. The period of one year limitation gets extended by the period for which some interim order of any nature has been passed by a Court of Law. If such a declaration is not made under Section 6 within the aforesaid period, the proceedings will lapse. This view was taken by the Apex Court in State of Haryana v. Sukhdev, AIR 1994 SC 1255 and General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob, AIR 2003 SC 1308 . 19. A Division Bench of this Court in Mahavir Sahkari Avas Samiti Ltd. v. State of U.P. and others, 2006(8) ADJ 203 (DB), considering the aforesaid provisions in para 54, sub para (iii) held that “the Court does not have the power to extend the period of limitation provided under the Statute.” Similarly, in various taxing statutes where the period of limitation expires, thereafter the authorities cannot proceed to pass orders against the assessee treating it to be procedural only. In those cases expiry of period of limitation provided in the statute result in vested right to the assessee like not to be assessed or face any assessment proceedings etc. before the authority concerned under the relevant Act. The illustrations may be multiplied but we do not wish to do so and feel satisfied by observing that it is not always correct to say that whenever the limitation is prescribed, it is in the nature of procedural law and, therefore, has to be read leniently and must be treated to be directory instead of mandatory. In respect to special enactments which contain substantive provisions as well as procedure to give effect to carrying out the purpose of such Act, if period of limitation is provided the same has been held to be mandatory and once such period has expired, the Court is not competent to extend limitation and thereby nullify the otherwise provision(s) under the statute.” 49. Similarly, in a reference made to a Division Bench as to whether Section 5 of Act, 1963 would be attracted in contempt proceedings to condone delay if limitation under Section 20 of Contempt of Courts Act, 1971 has expired, this Court in Islamuddin v. Sri Umesh Chandrara Tiwari and another, 2009(5) ADJ 656 (DB), held that it would not be applicable. 50. When questioned, learned Senior Counsel could not show that recovery certificate issued to Collector by PICUP is like filing a suit in a Court or an Appeal or any proceedings thereafter. Collector, while proceeding to recover dues communicated to him, as arrears of land revenue, through a recovery certificate, does not act as a ‘Court’. 51. While deciding revenue matters under Provisions of U. P. Land Revenue Act, 1901 (hereinafter referred to as “Act, 1901”), U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951) (hereinafter referred to as “Act, 1950”) and other provisions, Collector may function as a “Revenue Court” but for all purposes and for all times, in all matters, Collector does not act as a “Revenue Court”. He also exercises quasi judicial and executive powers under several statutes including U.P. Act, 1972. He also exercises quasi judicial and executive powers under several statutes including U.P. Act, 1972. When a certificate of recovery is issued by a Corporation, as defined under Section 2(a) of U.P. Act, 1972, Collector proceeds to recover dues as arrears of land revenue through himself and his subordinate authorities and there he functions as an executive Revenue Authority. 52. Section 3(2) of U.P. Act, 1972 states: “(2) The Collector on receiving the certificate shall proceed to recover the amount stated therein as an arrear of land revenue.” (emphasis added) 53. Further, Section 3(3) of U.P. Act, 1972 bars a suit in Civil Court against any person referred to in Sub-section (1) of Section 3. U.P. Act, 1972 specifically bars a civil suit in respect to dues of a Financial or Banking Institution, which can be recovered as arrears of land revenue under the provisions of U.P. Act, 1972. Thus, such Financial or Banking Institutions cannot file suit for recovery of outstanding dues and remedy available to them is to issue recovery certificate whereupon Collector shall proceed to recover the amount stated therein as arrears of land revenue. This also shows that Legislature has intended not to provide dual remedy to Banking or Financial Institutions, which may recover dues under the provisions of U.P. Act, 1972. They need not follow a lengthy procedure of filing a civil suit in a Civil Court and instead they can resort speedy remedy of recovery under the provisions of U.P. Act, 1972. If a defaulter, from whom recovery is made by Collector, has any grievance that such recovery has wrongly been given effect to and he has been deprived of his property in respect of certain dues, which were not liable to be recovered from him, U.P. Act, 1972 provides a remedy to such defaulter by stating that he shall pay such amount and thereafter file a suit for refund of the said amount. Limitation for defaulter obviously will commence only when he shall pay the amount or amount is recovered from him and not earlier thereto. We are, therefore, clearly of the view that provisions of Act, 1963 have no application to the stage of issue of recovery certificate by a Corporation, as defined under Section 2(a) of U.P. Act, 1972. Limitation for defaulter obviously will commence only when he shall pay the amount or amount is recovered from him and not earlier thereto. We are, therefore, clearly of the view that provisions of Act, 1963 have no application to the stage of issue of recovery certificate by a Corporation, as defined under Section 2(a) of U.P. Act, 1972. Once such recovery certificate is issued, Collector is under an obligation to proceed to recover amount stated therein as arrears of land revenue vide Section 3(2) of U.P. Act, 1972. If at the stage of issuance of recovery certificate, provisions of Act, 1963 are not attracted to a Corporation, as defined under Section 2(a) of U.P. Act, 1972, consequential recovery proceedings initiated by Collector also would not attract provisions of Act, 1963. 54. Now we come to the decision in State of Kerala and others v. V.R. Kalliyanikutty and another (supra) relied on by learned Senior Counsel. The matter had arisen when recovery was resorted to under Kerala Revenue Recovery Act, 1968 (hereinafter referred to as “Kerala Act, 1968”). Kerala Act, 1968, as originally enacted, applied to arrears of “public revenue due on land”. The words “public revenue due on land” were defined in Section 2(j) as “land revenue” charged on the land and includes all other taxes, fees and cesses on land, whether charged on land or not, and all cesses or other dues payable to the Government on account of water used for purposes of irrigation. Recovery of loan amount advanced by a Bank or Financial Institution was, as such, not included under Kerala Act, 1968. There was an enabling provision under Section 71 which reads as under: “Power of Government to declare the Act applicable to any institution: The Government may, by notification in the Gazette, declare, if they are satisfied that it is necessary to do so in public interest, that the provisions of this Act shall be applicable to the recovery of amounts due from any person or class of persons to any specified institution or any class or classes of institutions, and thereupon all the provisions of this Act shall be applicable to such recovery.” 55. Kerala Government in exercise of power under Section 71 issued Notifications No. 797 and 851 of 1979, extending provisions of Kerala Act, 1968 for recovery of amount, due from any person to any Bank, on account of loan advanced for agriculture or agricultural purposes and recovery of amount of loan advanced by Kerala Financial Corporation. These provisions, thus, were made applicable to loan advanced for agricultural purposes by Bank or Kerala Financial Corporation for the first time in 1979. It appears that certain dues which could have been recovered by Bank by filing suit before 1979, already became barred by limitation. After extension of Kerala Act, 1968 to the Bank and Kerala Financial Corporation, they issued recovery certificate for recovery of already time barred debts. The issue came to be considered “whether a time barred debt can be said to be “amount due” under Section 71 of Kerala Act, 1968". There was no dispute about the fact that dues were already barred by limitation and now sought to be recovered after extension of provisions of Kerala Act, 1968 to Bank and Kerala Financial Corporation. It is in this backdrop, Court formulated question to be considered and it is evident from Para 8 of judgment which reads as under: “8. Looking to the object of Section we have to examine whether time-barred claims of the State Financial Corporation and the banks can be recovered under it.” (emphasis added) 56. Court has also referred to arguments advanced by Financial Institution that the words “amount due” in Section 71 would encompass time-barred claims also. It was negatived by Court. It held that the dues having already become barred by limitation, cannot be said to be ‘amount due’ when provisions of Kerala Act, 1968 were extended to Financial Institutions. Such dues cannot be recovered by taking recourse to the said Act after extension of Kerala Act, 1968 to Financial Institutions. Court said that Kerala Act, 1968 does not create any new right. It merely provides a process of speedy recovery of moneys due. If instead of filing a suit, Financial Institution can recover the claim under Kerala Act, 1968 they can do so, but where dues are already barred by limitation, by taking recourse to extension of Kerala Act, 1968 to Financial Institutions, they cannot proceed to recover time barred dues under the provisions of Kerala Act, 1968. If instead of filing a suit, Financial Institution can recover the claim under Kerala Act, 1968 they can do so, but where dues are already barred by limitation, by taking recourse to extension of Kerala Act, 1968 to Financial Institutions, they cannot proceed to recover time barred dues under the provisions of Kerala Act, 1968. Court has decided the matter in the light of specific provisions of Kerala Act, 1968. To our mind, aforesaid judgment, as such, is not applicable where matter is governed by U.P. Act, 1972. Moreover U.P. Act, 1972 bars a civil suit vide Section 3(3) against any person referred to in Sub-section (1) and Section 4(1)(b) states that Section 3 shall not bar a suit etc. against any person other than the person referred to in Section 3. Here also petitioners are admittedly governed and covered by Section 3(1) of U.P. Act, 1972. 57. Similarly, in Maharashtra State Financial Corporation v. Ashok Kumar Agarwal, JT 2006 (4) SC 197, execution of a decree was up for consideration. Maharashtra State Financial Corporation (hereinafter referred to as “MSFC”) moved an application under Sections 31 and 32 of Act, 1951 in the Court of District Judge, praying for order of sale of hypothecated goods of borrower Company. On 11.6.1990, attached property of borrower Company was put on sale since there was a shortfall of realization of dues. MSFC sent notices to sureties on 27.12.1991 and filed application under Section 31(1)(aa) on 2.1.1992. Sureties took objection that said application was barred by limitation provided under Article 137 of Act, 1963. District Judge upheld objection and rejected application filed by MSFC as barred by limitation. The order was confirmed by High Court by dismissing appeal of MSFC and it was also confirmed by Supreme Court. It observed that Article 136 is applicable for execution of decree or order of any Civil Court. The application under Sections 31 and 32 is not by way of execution of a decree or order of any Civil Court and, therefore, Article 136 was not applicable. It is in these circumstances, Court held that Article 137 was applicable and hence the application was barred by limitation. The issue raised in this judgment was entirely different, and, in our view, it lends no support to petitioners on the issue raised in the present writ petition. 58. It is in these circumstances, Court held that Article 137 was applicable and hence the application was barred by limitation. The issue raised in this judgment was entirely different, and, in our view, it lends no support to petitioners on the issue raised in the present writ petition. 58. Then we come to Division Bench judgment in Narendra Kumar and another v. Collector, Bulandshahar and others (supra). Here loan was sanctioned by “U.P.F.C.” and disbursed in instalments between 7.4.1975 to 17.071976. Instalments were not paid. UPFC recalled entire loan on 14.9.1978. Recovery certificate was issued on 2.1.1979 under U.P. Act, 1972. Deputy Collector on 20.8.1981 auctioned the unit of borrower as also mortgaged land belong to a guarantor. Sale certificate was issued by Collector on 20.8.1981. Tehsildar, thereafter, certified that borrower has nothing left with him wherefrom further recovery is possible and thereafter recovery certificate was returned by Collector to UPFC. It kept silence for about 18 years and thereafter sent a notice on 29.6.2000 to Narendra Kumar and another that they had taken loan of Rs. 1,38,700/- and have not paid the same which has swollen till 20.3.2000 to Rs. 48,03,281.94. Notice also detailed earlier recovery proceedings and invited Narendra Kumar and another to come for one time settlement. Collector issued order of recovery on 30.8.2000 whereon citation was issued by Tehsildar on 12.9.2000. These orders of Collector and Tehsildar were challenged. It had also come before Court that after Collector returned recovery certificate in 1979, Board of Directors of UPFC considered the matter and in its meeting dated 31.3.1986 resolved to waive off/write off remaining un-recovered loan amount. Court then proceeded to consider the argument of limitation with respect to recovery initiated on 30.8.2000. Relying on the decision in State of Kerala and others v. V.R. Kalliyanikutty and another (supra), Division Bench held that limitation will apply to such recovery proceedings and said as under: “12. The law of limitation makes available a right of defence with the debtor to claim that after the expiry of period of limitation the remedy to recover the amount by the creditor from him had become time barred. The Act has been enforced for speedy recovery of dues of the State Government, U.P. Financial Corporation etc. as mentioned in the Act. The Act has been enforced for speedy recovery of dues of the State Government, U.P. Financial Corporation etc. as mentioned in the Act. It has not been enacted with a purpose to enlarge the limitation nor the rights of the creditor had been enlarged to recover claims of sum due that had become time barred. It is a settled law, that no one can extend the period of limitation by taking advantage of his own wrong.” 59. It has further said as under: “Even assuming that the revenue authorities failed to discharge their duty in accordance with law, it could not stop the limitation. The cause of action for recovery of the loan arose when the petitioner committed default. The respondents initiated recovery within time. But once the recovery certificate was returned after sale of petitioners’ assets, the recovery proceedings came to an end. If something remained or any property was not sold, the proceedings could have started but in accordance with law. The time taken to recover the amount was arrested when recovery proceedings were started. It started running again when recovery certificate was returned. Since no proceedings were initiated for nearly eighteen years, the proceedings for recovery became barred by time.” (emphasis added) 60. The distinction between Kerala Act, 1968 and U.P. Act, 1972 has not been examined in the aforesaid Division Bench judgment. Court also had no occasion to examine that Section 3 of Act, 1963 does not apply to executive authorities and Financial Institutions etc. It is applicable only to Courts. There was no period of limitation prescribed within which a Financial or Banking Institution should have issued recovery certificate, failing which, same would have become barred by limitation. It has also not examined as to when, Act, 1963 will apply, i.e., at the stage when recovery certificate is issued or at the stage when Collector proceeds to recover the amount mentioned in recovery certificate as arrears of land revenue. In fact, we find that though Court applied Act, 1963, but in fact it has laid stress upon the fact that recovery proceedings earlier initiated already attained finality and Financial Institution also waived unrecovered amount and thereafter fresh proceedings could not have been initiated after more than 18 years, but in general it has also discussed application of limitation under Act, 1963 without any specific reference to provisions thereof. Some of observations, therefore, in our view, are not correct. 61. In our view, the judgment in Narendra Kumar and another v. Collector, Bulandshahar (supra) cannot be treated to be a binding precedent on the question, whether provisions of Act, 1963 are applicable to recovery proceedings under U.P. Act, 1972 and even otherwise aforesaid judgment has been rendered in peculiar facts of that case, hence is not to be treated as a precedent on aforesaid question which as such has not been considered. 62. Now coming to present case, as we have already observed that Corporation is not a Court and, therefore, is not covered by Section 3 of Act, 1963 for not to issue recovery certificate, nor Collector, exercising executive power as a Revenue authority, for that purpose can be said to be a Court so as to attract Section 3 of Act, 1963. When Act, 1963 is not applicable to recovery proceedings in question, in absence of any other statute providing any period of limitation the very challenge thrown by petitioner that recovery proceedings are barred by limitation, falls and has no merit. 63. No other point has been argued. 64. In view of above, we are not inclined to accept the aforesaid submission and answer the same against petitioners. 65. Writ petition lacks merit. Dismissed. ——————