Dr. Jang Bahadur Singh And Ors vs Frick India Ltd. And Ors

(Arising out of Order dated 31st March, 2017 passed by the National Company Law Tribunal, Principal Bench, New Delhi in Company Petition No. 34(ND)/2012]

IN THE MATTER OF:

Dr. Jang Bahadur Singh and Ors. ...Appellants

Vs

Frick India Ltd. and Ors. ...Respondents

Present: For Appellants:- Shri Jayant K. Mehta, Shri Parvinder Tanwar, Shri Naren, Shri Nakul and Shri Rahul Kukreja, Advocates.

For Respondents: - Shri Amit Sibal, Senior Advocate assisted by Shri N.P.S Chawla and Shri Vinay Tripathi, Advocates.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by Appellants against order dated 31st

March, 2017 passed by National Company Law Tribunal (hereinafter referred

to as "Tribunal"), Principal Bench, New Delhi in Company Petition No.

34(ND)/2012 whereby and whereunder the Tribunal dismissed the petition

preferred by the Appellants under Sections 397, 398, 402 & 403 read with

Company Appeal (AT) No. 366 of 2017 2 Section 111A of the Companies Act, 1956. There being a delay, a petition for

condonation of delay has also been filed.

2. On notice, the Respondents have appeared and case was heard on the

question of condonation of delay, for which, the petition has been preferred

by the Appellants.

3. The impugned order was passed by the Tribunal on 31st March, 2017

but a defective appeal was presented by Appellants on 16th May, 2017. The

defects were not removed for more than five months and after removal of the

defects it was filed on 25th October, 2017.

4. Learned counsel appearing on behalf of the Appellants submitted

that the Appellants filed an Interlocutory Application No. 37769/2017

before Hon'ble Supreme Court in one pending SLP (Civil) No. 3277 of

2016 with prayer to set aside the order dated 31st March, 2017, but the

Hon'ble Supreme Court refused to entertain the said application with

following observation:

"Since the application (I.A. No. 37769/2017) filed

in a decided matter is not maintainable, the same

is dismissed as withdrawn. However, this order

will not affect the parties approaching any other

forum in accordance with law."

5. It was submitted that in view of the fact that the Appellants have

moved before a wrong forum, the Appellants are entitled to get benefit of

Company Appeal (AT) No. 366 of 2017 3 Section 14 of the Limitation Act, 1963 and the period of pendency of the

case before the Hon'ble Supreme Court should be deleted.

6. It was further submitted that certified copy of the impugned order

is made available to the Appellants on 13th July, 2017 which is the

starting point to count the period of limitation. Further, according to

learned counsel for the Appellants, the ninety days' period if counted from

13th July, 2017, it will be over on or about 11th October, 2017. The Appeal

having filed on 25th October, 2017 as there being further delay of about

eight days in preferring the appeal, the period consumed before the wrong

forum i.e. Hon'ble Supreme Court between 14th August, 2017 to 13th

October, 2017 be excluded under Section 14 of the Limitation Act, 1963

for computation of period of ninety days.

7. From the record we find that the appeal was preferred by Appellant

on 16th May, 2017, meaning thereby that the impugned order was

communicated to the Appellants by the said date. Though, according to

the Respondents the copy of the impugned order was made available by

the Tribunal to the Appellants immediately after 31st March, 2017.

8. If the date of filing of the appeal i.e. 16th May, 2017 is taken as the

starting point to count the limitation, in such case, the appeal was

required to be filed by 30th June, 2017, which has been filed. However,

instead of removing the defects for more than five months, the Appellant

moved before the Hon'ble Supreme Court by preferring an Interlocutory

Company Appeal (AT) No. 366 of 2017 4

Application in a disposed of Special Leave Petition which was not

maintainable.

9. The Appellants have not explained the delay of five months in

removing the defects and in absence of such explanation, we are not

satisfied with the question of condonation of delay merely on the ground

that they preferred an Interlocutory Application before the Hon'ble

Supreme Court.

10. The Appellants cannot take advantage of Section 14 of the

Limitation Act as they had the knowledge that the Appellate Tribunal is

the right forum before which they moved on 16th May, 2017 and preferred

the defective appeal. Therefore, they cannot take plea that they moved

before a wrong forum i.e. the Hon'ble Supreme Court.

11. Rule 26 of the National Company Law Appellate Tribunal Rules, 2016

(hereinafter referred to as "NCLAT Rules"), which relates to endorsement and

scrutiny of petition or appeal or document, reads as follows: -

"26. Endorsement and scrutiny of petition or

appeal or document.-(1) The person in charge of

the filing-counter shall immediately on receipt of

appeal or document affix the date and stamp of

the Appellate Tribunal thereon and also on the

additional copies of the index and return the

acknowledgement to the party and he shall also

Company Appeal (AT) No. 366 of 2017 5

affix his initials on the stamp affixed on the first

page of the copies and enter the particulars of all

such documents in the register after daily filing

and assign a diary number which shall be

entered below the date stamp and thereafter

cause it to be sent for scrutiny.

(2) If, on scrutiny, the appeal or document is found

to be defective, such document shall, after notice

to the party, be returned for compliance and if

there is a failure to comply within seven days from

the date of return, the same shall be placed before

the Registrar who may pass appropriate orders.

(3) The Registrar may for sufficient cause return

the said document for rectification or amendment

to the party filing the same, and for this purpose

may allow to the party concerned such

reasonable time as he may consider necessary or

extend the time for compliance.

(4) Where the party fails to take any step for the

removal of the defect within the time fixed for the

same, the Registrar may, for reasons to be

recorded in writing, decline to register the appeal

or pleading or document."

Company Appeal (AT) No. 366 of 2017 6

12. In spite of time granted by the Registrar to remove the defects, the

Appellants failed to take any step to remove the defects within the time

fixed. As the failure is intentional, as is apparent from the record and the

manner in which the defective appeal is preferred to save the limitation

period and then to take a chance before the Hon'ble Supreme Court, the

Appellants do not deserve any sympathy.

13. For the reasons aforesaid, we are not inclined to condone the delay.

The appeal is accordingly dismissed for not taking steps to remove the

defects within the fixed time. No cost.

(Justice Bansi Lal Bhat) (Justice S.J. Mukhopadhaya) Member (Judicial) Chairperson

NEW DELHI 21st December, 2017 AR

Company Appeal (AT) No. 366 of 2017