Bengal Chemists & Druggists ... vs Kalyan Chowdhury

Bengal Chemists & Druggists Association Appellant

Versus

Kalyan Chowdhury Respondent

Present: For Appellant: Ms. Pratiksha Sharma and Shri Ankit Acharya, Advocates

For Respondent: Shri Sankar N. Sinha, Advocate

ORDER

31.07.2017 This appeal has been preferred by the appellant

against the order dated 29th September, 2016 passed by the

National Company Law Tribunal (hereinafter referred to as

Tribunal'), Kolkata Bench, Kolkata in CA No. 908/2015, CA No.

1114/2015 in CP No. 60/2015, whereby and whereunder the

company petition has been disposed of along with pending CAs.

2. In the present case, we find that the impugned order was

passed on 29th September, 2016 and this appeal has been filed on

22nd February, 2017 i.e. after 99 days of the impugned order. -2-

3. As per sub-section (3) of Section 421 of the Companies Act,

2013, every appeal under sub-section (1) of Section 421 is required

to be filed within a period of 45 days from the date on which a copy

of the order of the Tribunal is made available. The Appellate

Tribunal has been empowered to condone the delay, even after the

expiry of this period of 45 days, but within a further period not

exceeding 45 days, i.e. within 90 days from the date of receipt of

copy Of the order, which reads as follows:

"Sec. 421. Appeal from orders of Tribunal.--

(1) Any person aggrieved by an order of the Tribunal

may prefer an appeal to the Appellate Tribunal.

(2) No appeal shall lie to the Appellate Tribunal from

an order made by the Tribunal with the consent of

parties.

(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 -3-

of forty-five days from the date aforesaid, but within

a further period not exceeding forty-five days, if it is

satisfied that the appellant was prevented by

sufficient cause from filing the appeal within that

period."

4. Learned counsel for the' appellant referred to Section 433 of

the Companies Act, 2013, as quoted below, whereby Limitation Act,

1963 has been made applicable as far as practicable and submitted

that as per Section 29(3) of the Limitation Act, 1963 delay can be

condoned. The said provision reads as follows:

"Sec. 433. Limitation. - The provisions of the

Limitation Act, 1963 shall, as far as may be, apply to

proceedings or appeals before the Tribunal or the

Appellate Tribunal, as the case may be."

5. However, the aforesaid submission made by learned counsel

for the appellant cannot be accepted, as provisions of Limitation

Act, 1963, can be applied, only if it can be applicable. There being

period of 45 days having prescribed under Section 421(3) to the

Appellate Tribunal to condone the delay, the Appellate Tribunal has

no jurisdiction to condone the delay beyond the said period. -4-

6. For the reasons aforesaid, the application for condonation of

delay is rejected. In the result, the appeal is dismissed being barred

by limitation. However, in the facts and circumstances of the case,

there shall be no order as to costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh I Member (Technical]

/ng/