Bajaj Promoters Private Limited vs The Registrar Of Companies Chennai
- CitationCompany Appeal (AT)(CH) No.40/2022
Ratio decidendi
The rule this decision rests on
Section 14 of the Limitation Act, 1963 excludes time spent in bona fide prosecution of proceedings in a court or tribunal lacking jurisdiction, or in a wrong forum by reason of a bona fide mistake of law or defect of procedure; it does not extend to a proceeding that is pursued before a tribunal possessing jurisdiction over the subject matter, merely because that proceeding was itself brought under a mistaken belief about the correct remedy. A review application filed before a tribunal having jurisdiction to entertain it, seeking to review its own earlier order, is not a proceeding before a court or tribunal without jurisdiction, and the time consumed by it cannot be excluded under Section 14 of the Limitation Act, 1963 in computing the limitation period for an appeal, even though Section 433 of the Companies Act, 2013 makes the Limitation Act applicable to proceedings before the Tribunal and Appellate Tribunal. An appeal whose application for condonation of delay is dismissed for want of sufficient ground under the above principle cannot survive for adjudication, and the appeal itself stands dismissed as a necessary consequence.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Company Appeal (AT)(CH) No.40/2022 (Under Section 421 of the Companies Act, 2013) (Arising out of the Order dated 30.01.2019 in CA No.1458/2018 passed by the National Company Law Tribunal, Chennai Bench)
In the matter of: Bajaj Promoters Pvt Ltd. ...Appellant V The Registrar of Companies ...Respondent
Present: For Appellant : Mr. V. Arvind Rajagopal, Advocate
ORDER
(VIRTUAL MODE) 01.07.2022: Heard Mr. V. Arvind Rajagopal, the Learned Counsel appearing
for the Applicant / Appellant in IA/482/2022 in the Instant Company Appeal
(AT)(CH) No.40/2022.
According to the Learned Counsel for the Applicant / Appellant, the
Respondent had initiated proceedings under Section 248 of the Companies
Act, 2013 for the purpose of 'striking off' the name of the Applicant /
Appellant Company from the 'Register' maintained by the Respondent /
Registrar of Companies.
Company Appeal (AT)(CH) No.40/2022 Page 1 of 6
It is a stand of the Applicant / Appellant that the Respondent / Registrar
of Companies had issued 'Notice' in Form No. STK 5 on 04.06.2018 bearing
No.ROC/CHN/S.248/STK-5/1/2018 mentioning that the Appellant Company
was not carrying on any business or operation for a period of two years
immediately preceding the Financial Year and subsequently issued
Form No.STK-7 on 09.08.2018 bearing No.ROC/CHN/STK-7/2018 notifying
to the 'Applicant / Appellant Company' before 'struck off' the 'name of the
Company' from the Register of Companies.
The Learned Counsel for the Applicant / Appellant brings to the
'Notice' of this 'Tribunal' that the Applicant / Appellant filed an Application
in CA/1458/2018 before the National Company Tribunal, Chennai under
Section 252 (3) of the Companies Act, 2013, pursuant to the 'striking off' of
the name of the Company by the Registrar of Companies and that the National
Company Tribunal, Chennai, as per its order dated 30.01.2019 had dismissed
the Application stating that the Company had not filed its 'Annual Returns'
from the year 2001 onwards till the date of the 'Impugned Order' i.e., for more
than 15 years the Appellant / Applicant Company was not doing 'any
business' and not filing 'Annual Returns'.
The Learned Counsel for the Applicant / Appellant in IA/482/2022 in
Company Appeal No. (AT)(CH) No.40/2022 points out that the Applicant /
Company Appeal (AT)(CH) No.40/2022 Page 2 of 6 Appellant had inadvertently moved to the National Company Law Tribunal,
Chennai as per Section 420 (2) of the Companies Act, 2013 read with Rule
154 of the National Company Law Tribunal Rules, 2016 with a 'bona fide
belief' and based on 'legal advice' against the 'Impugned Order' dated
30.01.2019, instead of preferring an 'Appeal' before the 'Appellate Tribunal'.
It is not in dispute that the 'Review Application' filed before the
National Company Law Tribunal, Division Bench - II, Chennai in S.R.
No.949 of 2019 in CA/1458/2018 was dismissed by the National Company
Law Tribunal, Division Bench - II, Chennai, on 30.03.2021.
The Learned Counsel for the Applicant / Appellant contends that
Section 14 of the Limitation Act, 1963 provides for 'exclusion of time', of
proceeding bonafide in Court 'without jurisdiction' and as such by the
ingredients of Section 14 of the 'Limitation Act, 1963', the time spent, in
regard to the filing of the 'Review Petition' and disposal of the same by the
National Company Law Tribunal, Division Bench - II, Chennai can be
excluded in regard to the 'computation of Limitation period'.
The Learned Counsel for the Applicant / Appellant adverts to Section
433 of the Companies Act, 2013, which enjoins that the Provisions of the
Limitation Act 1963 (36 / 1963) shall, as far as may be, apply to Proceedings
Company Appeal (AT)(CH) No.40/2022 Page 3 of 6 or Appeals before the 'Tribunal' or the 'Appellate Tribunal', as the case may
be.
In this connection, this 'Tribunal' relevantly points out that Section 14
of the Limitation Act, 1963 clearly envisages that the Legislature has enacted
this Section to 'exclude a certain period' covered by a 'Bonafide Litigant
Activity'. However, in the instant case, the Review Application in SR No.949
of 2019 filed by the Applicant / Appellant is not before the 'Tribunal' without
jurisdiction, to try the 'subject matter', in issue. In fact, the Applicant /
Appellant has filed the 'Review Application' seeking to 'annul' the order
dated 30.03.2021 passed by the 'Tribunal'.
A clear cut reading of the Section 14 of the Limitation Act, 1963
unerringly points out that the ingredients of Section 14 of the Limitation Act,
1963 applies only in relation to a matter in which the litigant projects his
Application before the 'Court' / 'Tribunal' having no jurisdiction to entertain
it, but also when the Applicant files the Application in certain 'Court' /
'Tribunal' in a wrong forum consequence of a bonafide mistake of Law or
defect of Procedure.
However, in the instant case, the Applicant / Appellant was prosecuting
the 'Review Application' in SR No.949/2019 under Section 420 (2) of the
Companies Act, 2013 read with Rule 154 of the National Company Law
Company Appeal (AT)(CH) No.40/2022 Page 4 of 6 Tribunal, 2016 before the 'National Company Law Tribunal, Division
Bench-II, Chennai' and the aforesaid 'Tribunal' had dismissed the 'Review
Application' on 30.03.2021 by coming to the conclusion that the 'Judgment'
passed in CA/1458/2018 does not manifest any self-evident, error, etc. It also
proceeded to observe fact that 'Review Application in SR/949/2019 in
CA/1458/2018' was nothing but an attempt to reopen the review the order
passed by the National Company Law Tribunal, Division Bench-II, Chennai
on 31.01.2019.
Be that as it may, in view of the fact that Section 14 of the Limitation
Act, 1963 applies to the 'Court' / 'Tribunal' whether the 'exclusion of time'
bonafide in 'Court' / 'Tribunal' without jurisdiction and in the instant Case,
'Review Application' was filed before the 'National Company Law Tribunal,
Division Bench-II, Chennai' to review an earlier order in CA/1458/2018
passed on 30.01.2019, by no stretch of imagination, be said to be 'Tribunal'
possessing 'no jurisdiction', viewed in that light, the invocation of Section 14
of the Limitation Act, 1963 on behalf of the Applicant / Appellant sans merits.
Resultantly, IA/482/2022 'Condonation of Delay' filed by the Applicant /
Appellant in the Instant Company Appeal (AT)(CH) No.40/2022, fails.
In fine, the IA/482/2022 in the Instant Company Appeal (AT)(CH)
No.40/2022 on the file of the 'Tribunal' is dismissed. No costs.
Company Appeal (AT)(CH) No.40/2022 Page 5 of 6
In view of the fact that this 'Tribunal' had dismissed the 'Condonation
of Delay Application' in IA/482/2022 in the Instant Company Appeal
(AT)(CH) No.40/2022, the main Company Appeal (AT)(CH) No.40/2022
also does not survive for 'Adjudication' and accordingly, the same is also
dismissed. No costs.
[Justice M. Venugopal] Member (Judicial)
[Mr. Kanthi Narahari] Member (Technical) ghk/tm
Company Appeal (AT)(CH) No.40/2022 Page 6 of 6
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