Sagufa Ahmed & Ors. v. Upper Assam Plywood Products Pvt. Ltd. & Ors.
V. RAMASUBRAMANIAN, J.
1. Challenging an order passed by the National Company Law
Appellate Tribunal (hereinafter referred to as ‘NCLAT’) dismissing an
application for condonation of delay as well as an appeal as time barred,
the appellants have come up with the above appeals.
2. We have heard Mr. Gunjan Singh, learned counsel for the
appellants and Mr. Sajan Poovayya, learned Senior Counsel who accepts
notice on behalf of the first respondent.
3. The appellants herein together claim to hold 24.89% of the
shares of a company by name Upper Assam Plywood Products Private
Limited, which is the first respondent herein. The appellants moved an
application before the Guwahati Bench of the National Company Law
Tribunal (hereinafter referred to as ‘NCLT’) for the winding up of the
company. The said petition was dismissed by the NCLT by a n order
dated 25.10.2019.
4. According to the appellants, they applied for a certified copy of
the order of the NCLT dated 25.10.2019, on 21.11.2019 (though the
appellants have claimed in the Memo of Appeal that they applied for a
certified copy on 21.11.2019, the copy application filed as Annexure P-
1 bears the date 22.11.2019).
5. According to the appellants, the certified copy of the order
dated 25.10.2019 passed by the NCLT was received by their counsel on
19.12.2019, pursuant to the copy application made on 21.11.2019.
6. Though the appellants admittedly received the certified copy of
the order on 19.12.2019, they chose to file the statutory appeal before
NCLAT on 20.07.2020. The appeal was filed along with an application
for condonation of delay.
7. By an order dated 04.08.2020, the Appellate Tribunal dismissed
the application for condonation of delay on the ground that the Tribunal
has no power to condone the delay beyond a period o f 45 days.
Consequently the appeal was also dismissed. It is against the dismissal
of both the application for condonation of delay as well as the appea l,
that the appellants have come up with the present appeals.
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS.
8. The contentions raised by the learned counsel for the appellants
are two-fold namely (i) that the Appellate Tribunal erred in computing
the period of limitation from the date of the order of the NCLT, contrary
to Section 421(3) of the Companies Act, 2013, and (ii) that the Appellate
Tribunal failed to take note of the lockdown as well as the order passed
by this Court on 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of
2020, extending the period of limitation for filing any proceeding with
effect from 15.03.2020 until further orders.
9. Let us now test the correctness of the contentions one by one.
Contention-1
10. Section 420(3) of the Companies Act, 2013 mandates the NCLT
to send a copy of every order passed under Section 420(1) to all the
parties concerned. Section 420(3) reads as follows:
“420. Orders of Tribunal -
(1) xxxx
(2) xxxx
(3) The Tribunal shall send a copy of every order p assed
under this section to all the parties concerned”.
11. Rule 50 of the National Company Law Tribunal Rules, 2016
also mandates the Registry of the NCLT to send a certified copy of the
final order to the parties concerned free of cost. However, Rule 50 also
enables the Registry of the NCLT to make available the certified copies
with cost as per schedule of fees in all other cases (meaning thereby ‘to
persons who are not parties’). Rule 50 reads as follows : -
“50. Registry to send certified copy. - The Registry shall send
a certified copy of final order passed to the parties concern ed
free of cost and the certified copies may be made ava ilable
with cost as per the schedule of fees, in all other cases.”
12. Section 421(1) provides for a remedy of appeal to the Appellate
Tribunal as against an order of NCLT. Sub-Section (3) of Section 421
prescribes the period of limitation for filing an appeal and th e proviso
thereunder confers a limited discretion upon the Appellate Tribunal to
condone the delay. Sub-Section (3) of Section 421 together wit h the
proviso thereunder reads as follows:
477
“421.Appeal from orders of Tribunal -
(1) xxxx
(2) xxxx
(3) Every appeal under sub-section (1) shall be filed within a
period of forty-five days from the date on which a copy of the
order of the Tribunal is made available to the person aggrieved
and shall be in such form, and accompanied by such fees, as
may be prescribed:
Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of forty -five days
from the date aforesaid, but within a further perio d not
exceeding forty-five days, if it is satisfied that the appellant
was prevented by sufficient cause from filing the appeal within
that period.”
13. Therefore, it is true, as contended by the appellants, that the
period of limitation of 45 days prescribed in Section 421(3) would start
running only from the date on which a copy of the order of the Tribunal
is made available to the person aggrieved. It is also true that under Section
420(3) of the Act read with Rule 50, the appellants were entitled to be
furnished with a certified copy of the order free of cost.
14. Therefore if the appellants had chosen not to file a copy
application, but to await the receipt of a free copy of the order in terms
of Section 420(3) read with Rule 50, they would be perfectly justified in
falling back on Section 421(3), for fixing the date from which limitation
would start running. But the appellants in this case, chose to apply for a
certified copy after 27 days of the pronouncement of the order in the ir
presence and they now fall back upon Section 421(3).
15. Despite the above factual position, we do not want to hold
against the appellants, the fact that they waited from 25.10.2019 ( the
date of the order of NCLT) upto 21.11.2019, to make a copy application.
But atleast from 19.12.2019, the date on which a certified co py was
admittedly received by the counsel for the appellants, the p eriod of
limitation cannot be stopped from running.
16. From 19.12.2019, the date on which the counsel for t he
appellants received the copy of the order, the appellants had a period of
45 days to file an appeal. This period expired on 02.02.2020.
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS. [V. RAMASUBRAMANIAN, J.]
17. By virtue of the proviso to Section 421(3), the Appellate Tribunal
was empowered to condone the delay upto a period of period of 45
days. This period of 45 days started running from 02.02.2020 and it
expired even according to the appellants on 18.03.2020. The appellants
did not file the appeal on or before 18.03.2020, but filed it on 20.07.2020.
It is relevant to note that the lock down was imposed only on 24.03.2020
and there was no impediment for the appellants to file the appeal on or
before 18.03.2020. To overcome this difficulty, the appellants rely upon
the order of this Court dated 23.03.2020. This takes us to the second
contention of the appellants.
Contention-2
18. To get over their failure to file an appeal on or before
18.03.2020, the appellants rely upon the order of this Co urt dated
23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020. It reads as
follows:
“This Court has taken Suo Motu cognizance of the situation
arising out of the challenge faced by the country on acc ount
of Covid-19 Virus and resultant difficulties that may be faced
by litigants across the country in filing their pet itions/
applications/suits/appeals/all other proceedings wi thin the
period of limitation prescribed under the general l aw of
limitation or under Special Laws (both Central and/or State).
To obviate such difficulties and to ensure that lawyers/
litigants do not have to come physically to file su ch
proceedings in respective Courts/Tribunals across the country
including this Court, it is hereby ordered that a p eriod of
limitation in all such proceedings, irrespective of the li mitation
prescribed under the general law or Special Laws wh ether
condonable or not shall stand extended w.e.f. 15th March
2020 till further order/s to be passed by this Court in prese nt
proceedings.
We are exercising this power under Article 142 read
with Article 141 of the Constitution of India and declare that
this order is a binding order within the meaning of Article
141 on all Courts/Tribunals and authorities.
This order may be brought to the notice of all High
Courts for being communicated to all subordinate Co urts/
Tribunals within their respective jurisdiction.
479
Issue notice to all the Registrars General of the High
Courts, returnable in four weeks.”
19. But we do not think that the appellants can take refuge under
the above order. What was extended by the above order of this Court
was only “the period of limitation” and not the period upto which
delay can be condoned in exercise of discretion conferre d by the
statute . The above order passed by this Court was intended to benef it
vigilant litigants who were prevented due to the pande mic and the
lockdown, from initiating proceedings within the period of limitation
prescribed by general or special law. It is needless to point out that the
law of limitation finds its root in two latin maxims, one of which is
Vigilantibus Non Dormientibus Jura Subveniunt which means that
the law will assist only those who are vigilant about their rights and not
those who sleep over them.
20. It may be useful in this regard to make a reference to Section
10 of the General Clauses Act, 1897 which reads as follows:
“10. Computation of time - (1) Where, by any 19 [Central
Act] or Regulation made after the commencement of this Act,
any act or proceeding is directed or allowed to be do ne or
taken in any Court or office on a certain day or wi thin a
prescribed period, then, if the Court or office is closed on
that day or the last day of the prescribed period, the act or
proceeding shall be considered as done or taken in due ti me
if it is done or taken on the next day afterwards on which the
Court or office is open:
Provided that nothing in this section shall apply to any
act or proceeding to which the Indian Limitation Act , 1877
(15 of 1877), applies.
(2) This section applies also to all [Central Acts] and,
Regulations made on or after the fourteenth day of Jan uary,
1887.”
21. The principle forming the basis of Section 10(1) of the General
Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963
which reads as follows: -
“4. Expiry of prescribed period when court is closed .—Where
the prescribed period for any suit, appeal or appli cation
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS. [V. RAMASUBRAMANIAN, J.]
expires on a day when the court is closed, the suit, app eal or
application may be instituted, preferred or made on th e day
when the court reopens.
Explanation.— A court shall be deemed to be closed on any
day within the meaning of this section if during any part of
its normal working hours it remains closed on that day.”
22. The words “prescribed period” appear in several Sections of
the Limitation Act, 1963. Though these words “prescribed period” are
not defined in Section 2 of the Limitation Act, 1963, the express ion is
used throughout, only to denote the period of limitation. We may see a
few examples:
(i) Section 3(1) makes every proceeding filed after the prescribed
period , liable to be dismissed, subject however to the provisions in Sections
4 to 24.
(ii) Section 5 enables the admission of any appeal or application
after the prescribed period .
(iii) Section 6 uses the expression prescribed period in relation
to proceedings to be initiated by persons under legal disability.
23. Therefore, the expression “prescribed period” appearing i n
Section 4 cannot be construed to mean anything other than the period of
limitation. Any period beyond the prescribed period , during which the
Court or Tribunal has the discretion to allow a person to inst itute the
proceedings, cannot be taken to be “prescribed period”.
24. In Assam Urban Water Supply and Sewerage Board Versus
Subash Projects and Marketing Limited 1, this Court dealt with the
meaning of the words “prescribed period” in paragraphs 13 and 14 as
follows:
“13. The crucial words in Section 4 of the 1963 Act are
“prescribed period”. What is the meaning of these words?
14. Section 2(j) of the 1963 Act defines”
“2(j) ‘period of limitation’ which means the period of
limitation prescribed for any suit, appeal or appli cation by
the Schedule, and ‘prescribed period’ means the per iod of
1 (2012) 2 SCC 624
481
limitation computed in accordance with the provisions of this
Act.
Section 2(j) of the 1963 Act when read in the context of Section
34(3) of the 1996 Act, it becomes amply clear that the
prescribed period for making an application for setting aside
arbitral award is three months. The period of 30 da ys
mentioned in proviso that follows sub-section (3) of Section
34 of the 1996 Act is not the ‘period of limitation ’ and,
therefore, not ‘prescribed period’ for the purposes of makin g
the application for setting aside the arbitral award. The pe riod
of 30 days beyond three months which the court may exte nd
on sufficient cause being shown under the proviso appe nded
to sub-section (3) of Section 34 of the 1996 Act being not the
‘period of limitation’ or, in other words, ‘prescribed p eriod’,
in our opinion, Section 4 of the 1963 Act is not, a t all,
attracted to the facts of the present case.”
25. Therefore, the appellants cannot claim the benefit of the order
passed by this Court on 23.03.2020, for enlarging, even the period up to
which delay can be condoned. The second contention is thus untenable.
Hence the appeals are liable to be dismissed. Accordingly , they are
dismissed.
Kalpana K. Tripathy Appeals dismissed.
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS. [V. RAMASUBRAMANIAN, J.]