Binod Kumar Bawri vs Dalmia Cement (North East) Ltd

1

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI COMPANY APPEAL (AT) NO. 164/2025 & IA No.4143 of 2025 In the matter of: Binod Kumar Bawri & Ors Appellant Vs Dalmia Cement (North East) Ltd & Ors Respondent For Appellant:Mr Arun Kathpalia, Sr Advocate, Mr Sacchin Pujri, Sr Advocate, Mr Praveen Kumar, Mr Vinayak Bhandari, Mr Sarthak Gupta, Ms Teesta Mishra, Mr Sunil Kumar, Mr Sahil Sharma, Advocates. For Respondent:Mr. Gopal Jain, Sr Advocate, Mr Mahesh Agarwal, Mr Rishi Agarwala, Mr Pratham Vir Agarwal, Advocates for R2. ORDER

HYBRID MODE 11.08.2025: This appeal is filed against an impugned order dated 05.01.2017

passed by Ld. NCLT, Guwahati Bench in TA No.14/2016 (CA No.907/2016) in

TP No.20/397/398/GB/2016 (CP No.143/2015).

2. Alongwith this appeal an IA No.4143/2025 has been filed under Rule 31

of the NCLAT Rules, 2016 read with Section 14 of the Limitation Act, 1963

seeking condonation of delay of 3022 days in filing the appeal. The reasons given

in the application are though the impugned order was passed on 05.01.2017,

the appellant filed two revision petitions under Article 227 of the Constitution of

India having CRP No.51/2017 and CRP No.52/2017 before the Hon'ble High

Court of Guwahati challenging the order dated 05.01.2017. Both these revision

petitions, however, on 25.06.2024 were dismissed as being not maintainable. 2

SLP being Diary No.19156/2025 was filed against the order dated 25.06.2024 of

the High Court but it was dismissed as withdrawn vide order dated 09.05.2025.

It is thus argued the period of pursuing the revision petitions and SLP be

excluded from the period of limitation per Section 14 of the Limitation Act.

Heard.

3. We have perused the record. Admittedly the impugned order was passed

on 05.01.2017 and instead of filing an appeal against the impugned order before

this Tribunal, the appellant had preferred to file two revision petitions before the

Guwahati High Court challenging such impugned order dated 05.01.2017. Such

petitions were dismissed on 25.06.2024 on grounds of maintainability.

Thereafter for 10 months, the appellant did not prefer to approach this Tribunal

and instead filed SLP which was also dismissed on 09.05.2025.

4. We are of the considered view that after the dismissal of revision petitions

on 25.06.2024 by the Guwahati High Court and that too on grounds of

maintainability, the appellant ought to have come before this Tribunal within

the period prescribed under Section 421(3) of Companies Act, 2013. Rather the

appellant preferred to file SLP, again after waiting for about 10 months. All this

reveal the appellant was not at all diligent in pursuing its remedies.

5. The learned senior counsel's contention viz both parties were before the

Hon'ble Supreme Court and the SLP was dismissed while allowing the appellant

to avail an alternate remedy, if available, to them in law would increase the

limitation is a frivolous argument. We are afraid there existed no remedy 3

thereafter. In Bengal Chemists and Druggists Association Vs Kalyan Chowdhury

(2018) 3 Supreme Court Cases 41 the Hon'ble Supreme Court held as under:-

3) Before coming to the judgments of this Court, it is important to first set out Section 421(3) and Section 433 of the Act. These provisions read as follows:

"421. Appeal from orders of Tribunal.-(1)-(2)**** **** **** (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 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.

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."

4) A cursory reading of Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply "as far as may be". In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply.

5) Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of 4

learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time limit of 45 days, which, as has been pointed out by us above, is peremptory in nature.

6. Further in Laly Joseph Vs Indo Asian News Channel Pvt Ltd & Ors

Company Appeal (AT)(CH) No.54 of 2023 this Tribunal held:-

7. Section 421(1) provides that any person who is aggrieved by an Order of the Tribunal has a right to prefer an Appeal before the Appellate Tribunal. Section 421(2) debars the filing of an Appeal against an Order which has been passed on the consent of the parties. Insofar as, the period of limitation is concerned, it is provided in Section 421(3) that the Appeal could be filed within a period of 45 days accompanied by such fee as may be prescribed.

In case of expiry of the statutory period of the 45 days, proviso to Section 421(3), further provides a period of 45 days for a litigant to file the Appeal after showing sufficient cause for not approaching the Court within the statutory period provided under Section 421(1) and can maintain the Appeal provided it is proved that he could not approach the Court within a prescribed time due to a sufficient cause.

8. Hence, the sufficient cause is a Sine-Qua-Non for the purpose of entertaining an Application and granting Condonation of Delay in such cases. We have considered the arguments of the Counsel for the Appellant and after perusal of the averments made in the Application, are of the considered opinion that the reason given in the Application do not constitute sufficient cause because the Appellant had been seeking under unnecessary beliefs.

7. And in Consolidated Engineering Enterprises Vs Principal Secretary,

Irrigation Department and others (2008) 7 Supreme Court Cases 169, the Court

held:-

21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the 5

following conditions must be satisfied before Section 14 can be pressed into service:

(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceedings and the later proceeding must relate to the same matter in issue and;

(5) Both the proceedings are in a court.

8. Considering the facts we are of the considered opinion no ground is made

by the appellant for exclusion of the time taken by them in pursuing a wrong

remedy in law, as even upon dismissal of revision petitions on 25.06.2024, the

appellant yet again failed to file appeal within the period stipulated in Section

421(3) of Companies Act, 2013. It shows the appellant failed to act with due

diligence and in good faith, hence cannot seek condonation of such huge delay

of 3022 days. The application IA No.4143/2025 is thus dismissed. Accordingly

the appeal as well as all pending applications are disposed of.

(Justice Yogesh Khanna) Member (Judicial)

(Mr. Ajai Das Mehrotra) Member (Technical) Bm/md