Admittedly, the petitioner has an effective alternative remedy of appeal as against the impugned order. But the petitioner seeks to bypass the alternative remedy on two grounds viz., (a) that there was a violation of the principles of natural justice, inasmuch as the request of the petitioner to cross-examine the witnesses whose statements were relied upon, was turned down arbitrarily and (b) that the rejection of the request for cross-examination was also contrary to the order of remand passed by the CESTAT, on 08-9-2014.

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE ABHINAND KUMAR SHAVILI                    

Writ Petition No.5917 of 2017

31-10-2017

1. M/s Manidhari Stainless Wire Pvt. Ltd., Through its Director, Shri Pavan Raj Kanugo, Secunderabad-500 003
2. Pavan Raj Kanugo S/o Sumermal Kanugo, Aged 52 years, Occ: Business, 203, Asha Devi Apts., P.G. Road, Sindhi Colony, Secund    

1.Union of India, Through its Secretary, Govt. of India, Ministry of Finance, New Delhi
 2. The Addl. Director General, O/o. Director General, Central Excise Intelligence, Hyderabad Zonal Unit, Hyderabad, H.No.1-1
Begumpet, Hyderabad-500 0013. Commissioner of Central Excise and Service Tax,   Hyderabad-IV, Posnett Bhavan, Tilak Road,  Ra  

Counsel for Petitioners:Mr. Madhava Sham Murthy, representing Mr. Srikanth Kaveti

Counsel for Respondents 1 to 3: Mr. B.Narayana Reddy,Senior Standing Counsel

<Gist:

>Head Note:

? Cases referred:
1.2013 (289) ELT 3 (SC)
2.2017 (350) ELT 486 (Bom.)
3.1983 (13) ELT 1486 (SC)
4.1997 (89) ELT 646 (SC)


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          
AND
HONBLE SRI JUSTICE ABHINAND KUMAR SHAVILI        
Writ Petition No.5917 of 2017
Order: (per V.Ramasubramanian, J.)
      The petitioner has come up with the above writ petition
challenging an Order-in-Original passed by the Commissioner
of Central Excise and Service Tax (the 3rd respondent herein),
in terms of Rule 14 of the CENVAT Credit Rules, 2004 read
with Section 11A(4) of the Central Excise Act, 1944, confirming
a demand of Rs.4,52,24,794/- towards CENVAT/ CVD, of  
Rs.67,03,377/- towards Additional duty of import,
of Rs.9,04,283/- towards Education Cess, of Rs.4,21,568/-
towards Secondary and Higher Education Cess, in all totalling
to Rs.5,32,54,022/-, purportedly towards recovery of the
CENVAT Credit improperly availed.
      2. We have heard Mr. Madhava Sham Murthy, learned
counsel appearing for the petitioner and Mr. B.Narayana
Reddy, learned Senior Standing Counsel for the respondents.
      3. The petitioner is engaged in the manufacture of
various stainless steel items, such as S.S. Wire, S.S. Flat, S.S.
Wire Rod, S.S. Angle etc., classifiable under Ch.72 of the
Schedule to the Central Excise Tariff Act, 1985. Search
operations were conducted at the factory premises of the
petitioner, the residential premises of its Directors and other
related premises, on 24-6-2009, on the ground that the officers
of the Directorate of Central Excise Intelligence had specific
information that the petitioner was irregularly availing CENVAT
Credit of duty paid on certain goods claiming them as inputs
without actually using the same in or in relation to the
manufacture of their dutiable finished goods.
      4. After the search and after recording the statements of a
few persons including a consultant of the petitioner, a show
cause notice was issued on 01-3-2012, calling upon the
petitioner to show cause as to why CENVAT Credit amounting
to Rs.4,50,52,629/-, for the period from 01-02-2007 to
02-10-2011 should not be demanded and recovered under
Section 11A(1). This show cause notice resulted in an ex parte
Order-in-Original being passed on 20-5-2013.
      5. As against the Order-in-Original dated 20-5-2013, the
petitioner filed an appeal before the CESTAT. The CESTAT
allowed the appeal by an order dated 08-9-2014 and
remanded the matter back to the Adjudicating Authority.
      6. In the de novo proceedings, held on 20-10-2015, the
authorised representative of the petitioner seems to have
requested for cross-examination of some persons. The
petitioner also requested permission to inspect the documents.
      7. But the request was rejected and hence the petitioner
filed a reply to the show cause notice. Thereafter, a personal
hearing took place on 18-3-2016. It appears that the petitioner
reiterated their demand for cross-examination. However, by
the order impugned in the writ petition dated
31-3-2016, which was later modified by a corrigendum dated
24-8-2016, the 3rd respondent confirmed the demand.
Therefore, aggrieved by the same, the petitioner has come up
with the above writ petition.
      8. Admittedly, the petitioner has an effective alternative
remedy of appeal as against the impugned order. But the
petitioner seeks to bypass the alternative remedy on two
grounds viz., (a) that there was a violation of the principles of
natural justice, inasmuch as the request of the petitioner to
cross-examine the witnesses whose statements were relied
upon, was turned down arbitrarily and (b) that the rejection of
the request for cross-examination was also contrary to the
order of remand passed by the CESTAT, on 08-9-2014.
      9. For the purpose of convenience, let us take up the
second ground for consideration first. It is the contention of the
learned counsel for the petitioner that the refusal of the
Adjudicating Authority to permit the petitioner to cross-
examine those persons whose statements were relied upon,
was contrary to the order of remand passed by the CESTAT in
the first round. Therefore, it is necessary to look at the order
passed by the CESTAT in the first round of litigation.
      10. It is seen from the order of CESTAT dated
8-9-2014 that the same was passed in common on three
appeals, one filed by the petitioner/Company and the other two
filed by the Directors of the petitioner/Company. Paragraph-3
of the order of CESTAT shows that two grounds were urged
viz., (a) that the request for cross-examination was denied and
(b) that the request for furnishing the documents, properly
paginated and indexed was not considered.
In paragraph-4 of the order, the Tribunal recorded its
displeasure that though the petitioner was responsible for
protracting the proceedings by not filing a reply to the show
cause notice, there was substantial contribution from the
Commissioner, forcing the Tribunal to reluctantly interfere with
the order. In paragraph-5, the Tribunal, after recording the
contents of the letter of the counsel for the petitioner seeking
cross-examination of the persons cited therein, went on to
examine how the request for certain documents was not
properly considered. Paragraph-5 of the order of the Tribunal
reads as follows:
5. In this case on 29-3-2013, the advocate for the
appellant submitted a letter to the Commissioner
wherein he gave the name of the persons whom he would
like to cross-examine and also cited several decisions to
support his submissions relating to cross-examination.
Further in paragraph 5 of his letter, he submits that
documents from C1 to C8, C13, C15 to C18, C20, C22,
C24 to C28 and C1.4 are not available in the relied upon
documents. This submission has been simply brushed  
aside without proper discussion and without taking note
of the fact which was brought out by the learned AR
today during the hearing that till then correspondence
was being undertaken by the appellants and they had
been provided documents on two occasions and this
specific complaint about specific documents not being
received had not been made till that date.
      11. In paragraph-6 also, the discussion revolved only
around the non-furnishing of the documents. In paragraph-7
of its order (penultimate paragraph), the Tribunal recorded its
findings and in paragraph-8, the Tribunal recorded the result
of the appeals. Paragraphs-7 and 8 of the order of the Tribunal
read as follows:
       7. From the above it can be seen that it was the
Commissioners office who directed the assessee to go to
DGCEI office and also required the Additional Director to
conduct verification and send a confirmation. That being
the position, it was not proper for the Commissioner to
simply adjudicate the matter ignoring his own office
request to the Additional Director for a report and
ignoring the fact that learned counsel for the appellants
had stated that the DGCEI office had asked the
appellants to come after
15th April for the purpose of verification of documents/
supply of documents. Having written to the Additional
Director to verify and confirm and having written to the
assessee to go to the DGCEI office, passing an
adjudication order without getting the complete
reply/proper reply and without giving an opportunity to
the appellants to go through the process of verification
with DGCEI was not proper.
       8. In view of the above observations very
reluctantly we set aside the impugned order and remand
the matter for fresh adjudication to the learned
Commissioner with a hope that a proper well reasoned
order will be passed. Needless to say we hope that
appellants shall also extend cooperation. Then again we
find that the appellants have been asking for paginated
index and frankly we could not understand what exactly
was the paginated index they wanted. However while the
appellants want every page to be numbered, the Revenue
seems to think that if annexure numbers have been given
that would be enough. This is another confusion that has
arisen. We hope there will be no such confusions in
future.
      12. From a careful look at the order of CESTAT dated 08-
9-2014 in its entirety, it can be easily deduced that the
Tribunal set aside the order of adjudication and remanded the
matter back, solely on the ground that certain documents were
not made available. Even in the operative portion of the order,
the Tribunal directed the Adjudicating Authority only to pass a
well reasoned order, after furnishing to the petitioner, the
documents with a paginated index (whatever it meant). Two
things follow from the order of the Tribunal dated 08-9-2014.
They are: (a) that though the ground relating to denial of
opportunity to cross-examine witnesses was specifically raised,
the Tribunal did not record any finding in paragraphs-7 and 8
of its order on this issue and (b) that in any case there was no
positive direction by the Tribunal in its order dated 08-9-2014
to give an opportunity to the petitioner to cross-examine the
witnesses. Therefore, the first contention of the petitioner that
the Adjudicating Authority failed to comply with the directions
issued by the CESTAT in the order of remand, is wholly
misconceived. Unless the Tribunal has recorded a categorical
finding that the refusal of the Adjudicating Authority to permit
cross-examination was illegal or unless the Tribunal has
directed the Adjudicating Authority to allow cross-examination,
it is not open to the petitioner to contend that the order of the
Tribunal was not complied with.
      13. In any case if the petitioner thinks that the
Adjudicating Authority failed to comply with the order of the
CESTAT, they should have gone again before the CESTAT. After
all, the order impugned in the writ petition is liable to be
appealed against, to the very same CESTAT. Without going to
the Tribunal and complaining that its order of remand was
violated, the petitioner has chosen to come to this Court to
complain that the order of the CESTAT was violated. Therefore,
we have no hesitation in rejecting the second contention.
      14. The first contention revolves around the refusal of the
adjudicating authority to permit cross-examination. In order to
understand and appreciate the scope and reach of this
contention, it is necessary to look into the nature of the
allegations against the petitioner, which lead to the
adjudication. The allegations against the petitioner are
(a) that they availed CENVAT Credit of duty paid on the
consignments of S.S. Sheet/S.S. Coils as detailed in the
annexure, without actually using the same in or in relation to
the manufacture of dutiable finished goods, (b) that they
showed certain portions of S.S. Sheets/S.S. Coils to have been
sent to job workers, for the conversion of the same into S.S.
Billets, without actually sending them (c) that the petitioner
declared the description of goods on the job work challans as
Scrap/Steel Scrap/S.S. Scrap even in cases where S.S.
Sheet/Coil was shown as sent for job work in their Raw
Material Stock Register and (d) that the petitioner had
procured unaccounted S.S. Scrap from the market and
supplied the same to job workers.
      15. The persons whom the petitioner wanted to summon
for cross-examination and the reasons for making such a
request were given by the petitioner in a letter dated 03-11-
2015 sent by the counsel for the petitioner to the
Commissioner. For the purpose of easy appreciation,
we present in a tabular form, the names, their identities and
the reasons given by the petitioner for making a request for
cross-examining them:
Name
Status
Reasons
1. Pradeep Das
General Manager
(Production) of the
petitioner/Company
He stated before the Investigating
Officers that he was not aware of the
purpose of receipt of consignments of
S.S. Sheets, S.S. Strips and S.S.
Flats into the factory. He claimed
that there was no use for the same
and that he was also not aware as to
why those goods were sent outside
the factory. The petitioner wanted to
cross-examine him on the ground
that this person deliberately kept
quiet and failed in his duty to
portray the correct position in the
factory, despite being Production-in-
Charge and despite being fully aware
of the nature of the activities in the
factory
2. Virender
 Kumar Pandey
Proprietor of M/s.
Akshat Steel Traders
He claimed in his statement to have
supplied M.S. Scrap to the company.
The petitioner claimed that this
person should be called upon to
produce all records such as Sale
Registers, Sales Invoices, Delivery
Challans, Monthly VAT Returns and
Income Tax Returns, evidencing the
supply of goods to the petitioner.
3.N.M.
   Bhandari
AGM (Accounts) of
M/s. Stainless India
Ltd.
He claimed that his company did not
receive any S.S. Coils from the
petitioner and that S.S. Coils could
not be used in their induction
furnace for melting purposes. The
petitioner claims that being an
accounts person, this person was
not competent to speak about the
aspects of production.  At the same
time, the petitioner claim that Sri
Bhandari was correct in stating that
M.S. Patti was not received. But the
petitioner claims that Bhandari
failed to disclose that what was
received by the company was M.S.
Patti Scrap ignited in the factory and
not supplied by Akshat Traders.
Therefore, the petitioner wanted to
cross-examine him to cull out the
actual nature of material that was
sent for conversion.
4. Ashok
    Fulvalia
Director, M/s.
Harrison Steels Pvt.
Ltd.
This witness stated that
M.S. Patti was not received but M.S.
Scrap was received. The petitioner
wanted this witness to come with all
the factory records showing the
receipt of M.S. Patti from their
factory.

      16. The request for cross-examination of the above four
witnesses was rejected by the Adjudicating Authority in
paragraph-22 of the impugned order, for the reasons stated
therein. It will be useful to extract the reasons stated by the
Adjudicating Authority as follows:
       (i) the deposition of Shri Pradeep Das regarding
the usage or otherwise of SS sheets, SS strips and SS
flats in the factory has also been corroborated by the
statements of Shri Uma Shankar Gupta, Ex-employee,  
Shri Naveen Chandra Upadyaya, Logistics in-charge Shri
Mukesh Pathak, former Excise Manager (Para 5.3, 5.6
and 5.11.5 respectively of SCN);
       (ii) the statements of S/Shri N.M. Bhandari, Ashok
Fulvalia, were shown to Shri Babulal Doshi, Director
during the course of his statement on 01-02-2012 and
after perusing the said statements, Shri Doshi admitted
that he is in agreement with the contents of the same.
(Para 6.9 of SCN);
       (iii) the statements of job workers were shown to
Shri Pavan Raj Kanugo during the course of recording his
statement dated 12-12-2011 under Section 14 of Central
Excise Act, 1944 and after going through the said
statements, Shri Kanugo stated that he had nothing to
differ or add in that regard (Para 6.8.2 of SCN);
       (iv) the depositions of S/Shri Virender Kumar
Pandey, N.M. Bhandari, Ashok Fulvalia, are also
supported by the records maintained by their respective
firms/ companies and the Show cause notice relies on
such records (Annexure C-16, C-18 and C-21
respectively) and the relevant details in the said records
are extracted in Annexure E-3.1, E-3.3 and E-4 to the
show cause notice;

      17. Apart from the above factual grounds of rejection, the
Adjudicating Authority also took a legal ground for rejection of
the request for cross-examination. The legal ground was that
as per the decision of the Supreme Court in Telestar Travels
Pvt. Ltd. V. Special Director of Enforcement , the rejection
of the request for cross-examination need not always
tantamount to violation of the principles of natural justice. The
decision of the Supreme Court in Telestar Travels Pvt. Ltd.
followed two earlier decisions, one in M/s. Kanungo & Co. v.
Collector of Customs, Calcutta [1983 (13) E.L.T. 1486 (S.C.)]
and the other in Surjeet Singh Chhabra v. Union of India
[1997 (89) E.L.T. 646 (S.C.)].
      18. Assailing the factual as well as the legal grounds on
which the Adjudicating Authority denied permission for cross-
examination, it was contended by Mr. Madhava Sham Murthy,  
learned counsel for the petitioner, that in Telestar, the
Supreme Court was dealing with proceedings under the
Foreign Exchange Regulation Act, 1973. Since Rule 3 of the
Adjudication Rules made it clear that the rules of procedure do
not apply to adjudication proceedings, the Supreme Court
came to a particular conclusion in Telestar and hence,
according to the learned counsel for the petitioner, the said
decision cannot be relied upon in the proceedings under the
Central Excise Act. In support of this contention, the learned
counsel places heavy reliance upon the decision of a Division
Bench of the Bombay High Court in Nirmal Seeds Pvt. Ltd. v.
Union of India .
      19. We have carefully considered the reasons stated in
paragraph-22.1 of the impugned order and the contentions of
the learned counsel for the petitioner. We have already
tabulated the details of the persons whom the petitioner
wanted to cross-examine and the reasons for the petitioner
making such a request. The first witness whom the petitioner
wanted to cross-examine, was their own General Manager
(Production). Admittedly he was an employee of the petitioner.
The petitioner has made an allegation that though he was fully
aware of the nature of the activities in the factory and especially
the manufacturing process, he deliberately kept quiet and
failed in his duty to portray the correct position in the factory.
      20. We do not know how, if one of the employees of
a company facing adjudication failed to perform his duties,
it would be a ground to seek his cross-examination.
The petitioner never filed any statement or sworn affidavit of
Mr. Pradeep Das, either retracting his earlier statement or
attempting to explain the same. In fact all that Sri Pradeep Das
said was that he was not aware about the purpose of receipt as
well as despatch of certain consignments. We do not know how
a cross-examination can be permitted in respect of something
that a witness claimed to be unaware of.
      21. Insofar as the remaining three witnesses whom the
petitioner wanted to summon for cross-examination are
concerned, the Adjudicating Authority has recorded
categorically that their statements were supported by records
maintained by their firms/companies and that the details of
such records were also indicated in Annexures C-16, C-18 and
C-21 to the show cause notice. The relevant details from the
said records were also extracted in Annexures E-3.1,
E-3.3 and E-4 to the show cause notice.
      22. Therefore, we are of the considered view that the
factual grounds on which the Adjudicating Authority rejected
the request for cross-examination, are cogent and convincing.
The statements of third party witnesses were in fact shown to
one of the Directors of the petitioner/Company by name
Babulal Doshi and he is stated to have confirmed those
statements.
      23. It may be of interest to note that before the
Adjudicating Authority, the petitioner/Company as well as the
other Director of the Company viz., Sri Pavan Raj Kanugo alone
were represented by counsel. It is recorded in paragraph-18.1
of the impugned order that Sri Madhava Sham Murthy, learned
counsel, appeared only for
M/s. Manidhari Stainless Wire Pvt. Ltd. and its Director Pavan
Raj Kanugo and that the advocate was not appearing for Sri
Babulal Doshi, the other Director who was also a noticee. In
other words, Babulal Doshi, one of the Directors of the
petitioner/Company, who confirmed the statements of the third
party witnesses, failed even to appear before the Adjudicating
Authority despite the fact that the Company as well as the
other Director were represented before the Adjudicating
Authority. Therefore, the reasons stated by the Adjudicating
Authority cannot be found fault with.
      24. Coming to the legal grounds, it is seen that in
Kanugo & Co. v. Collector of Customs , the Supreme Court
held categorically that the principles of natural justice do not
require that in matters of this nature, persons who gave
information should be allowed to be cross-examined.
In Kanugo & Co., what was in challenge was an order of
confiscation of goods under Section 167(8) of the Sea Customs
Act, 1878 read with Section 3(2) of the Imports and Exports
(Control) Act, 1947. In paragraph-12 of its judgment, the
Supreme Court held in Kanugo & Co. as follows:
12.     The complaint of the appellant now is that
all the persons from whom enquiries were alleged to have
been made by the authorities should have been produced
to enable it to cross-examine them. In our opinion, the
principles of natural justice do not require that in
matters like this the persons who have given information
should be examined in the presence of the appellant or
should be allowed to be cross-examined by them on the
statements made before the Customs Authorities.
Accordingly we hold that there is no force in the third
contention of the appellant.

      25. In Surjeet Singh Chhabra v. Union of India , the
Supreme Court was concerned with a case arising under the
Foreign Exchange Regulation Act and the Customs Act. Though  
the decision in Surjeet Singh Chhabra was a very brief order,
the Supreme Court rejected the contention that the denial of
cross-examination tantamounted to the violation of the
principles of natural justice.
      26. In Telestar Travels Pvt. Ltd., the Supreme Court
was concerned with a set of proceedings under the Foreign
Exchange Regulation Act, 1973. In paragraph-18 of its
decision, the Supreme Court dealt with this issue as follows:
       18. There is, in our opinion, to merit even in that
submission of the learned counsel. It is evident from Rule
3 of the Adjudication Rules framed under Section 79 of
the FERA that the rules of procedure do not apply to
adjudicating proceedings. That does not, however, mean
that in a given situation, cross-examination may not be
permitted to test the veracity of a deposition sought to be
issued against a party against whom action is proposed
to be taken. It is only when a deposition goes through the
fire of cross-examination that a Court or Statutory
Authority may be able to determine and assess its
probative value. Using a deposition that is not so tested,
may therefore amount to using evidence, which the party
concerned has had no opportunity to question. Such
refusal may in turn amount to violation of the rule of a
fair hearing and opportunity implicit in any adjudicatory
process, affecting the right of the citizen. The question,
however, is whether failure to permit the party to cross-
examine has resulted in any prejudice so as to call for
reversal of the orders and
a de novo enquiry into the matter. The answer to that
question would depend upon the facts and circumstances
of each case.    

      27. In paragraph-19, the Supreme Court extracted
paragraph-12 of the decision in Kanugo & Co. Eventually the
Court held in paragraph-20 as follows:
       20. Coming to the case at hand, the Adjudicating
Authority has mainly relied upon the statements of the
appellants and the documents seized in the course of the
search of their premises. But, there is no dispute that
apart from what was seized from the business premises
of the appellants the Adjudicating Authority also placed
reliance upon documents produced bys Miss Anita
Chotrani and Mr. Raut. These documents were, it is
admitted disclosed to the appellants who were permitted
to inspect the same.  The production of the documents
duly confronted to the appellants was in the nature of
production in terms of Section 139 of the Evidence Act,
where the witness producing the documents is not
subjected to cross-examination. Such being the case, the
refusal of the Adjudicating Authority to permit cross-
examination of the witnesses producing the documents
cannot even on the principles of Evidence Act be found
fault with. At any rate, the disclosure of the documents
to the appellants and the opportunity given to them to
rebut and explain the same was a substantial compliance
with the principles of natural justice. That being so,
there was and could be no prejudice to the appellants nor
was any demonstrated by the appellants before us or
before the Courts below. The third limb of the case of the
appellants also in that view fails and is rejected.

      28. Therefore, it is clear that the right to cross-examine is
not absolute at least insofar as the cases of this nature are
concerned. If there are factual grounds to show that the denial
of cross-examination was based upon the sound logic, then the
order of adjudication cannot be interfered with.
      29. It is true that in Nirmal Seeds Pvt. Ltd., a Division
Bench of the Bombay High Court distinguished the decision in
Telestar Travels. But the reasons for doing so in that
particular case are indicated in paragraph-12 of the decision,
which read as follows:
       12. In the present case, we do not think that we
are allowing the petitioners a liberty to prolong or delay
the adjudication proceedings. The petitioners in their
communication dated 23-11-2016, copy of which is at
Page 108 of the paper book, expressly brought to the
notice of the authorities that in the show cause notice
the statements of Dinesh J. Gunjal, Accountant of Nigal
Krushi Seva Kendra, Nashik, Dilip Sampat Dhikale and
Aditya Keshavsingh Pardeshi are referred and relied
upon.
The justification for cross-examination of each of these
persons is provided by the petitioners. They state that
Dinesh Gunjal is an Accountant but he has given the
statement as if he is a technical person and without
knowing the chemical composition and applications. He
has deposited that the products Bio Power and Bio Force
are growth stimulants/regulators and that is why his
technical capabilities have to be adjudged. His cross-
examination, therefore, is crucial. Dilip Sampat Dhikale
is
an undergraduate, yet, he deposes on identical lines and
claims that the above products are not ordinary
fertilizers.  Therefore, in order to ascertain whether he is
technically equipped to differentiate between plant
growth regulator and plant growth promoter and also to
know the difference between ordinary fertilizer and
stimulants/regulators that his cross-examination is
necessary. The third person also agrees with Mr. Gunjal.

      30. We do not find in this case, the presence of any of
those or similar reasons. Therefore, we are not convinced that
the impugned order could be set aside solely on the ground of
denial of permission to cross-examine the witnesses.
      31. In view of the above, the writ petition is dismissed.
However, it will be open to the petitioner to avail the alternative
remedy of appeal before the appropriate authority. The order
impugned in the writ petition was passed on
18-3-2016 and a corrigendum was issued on 24-8-2016.
The petitioner field the above writ petition on 24-11-2016.
Therefore, if the petitioner files an appeal as against the
impugned orders, the period from 24-11-2016 up to the date
of issue of the copy of this order shall be excluded for
computing either the period of limitation or the period of delay.
The Registry shall return the original impugned order to enable
the petitioner to file an appeal. The miscellaneous petitions, if
any, pending in this writ petition shall stand closed. No costs.
___________________________    
V.RAMASUBRAMANIAN, J.    
______________________________    
ABHINAND KUMAR SHAVILI, J.    
31st October, 2017.













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Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.