Gsf Solar Power Private Limited vs Registrar Of Companies & Anr

VIRTUAL MODE 12.09.2024:The appellant has filed this appeal under Section 421 of the

Companies Act, 2013 (for short 'Act') against the order dated 07.03.2024

passed by the National Company Law Tribunal, New Delhi by which Company

Appeal No.84/252/ND/2023 filed by the appellant under Section 252(3) of

the Act has been dismissed.

2. The aforesaid appeal has filed alongwith an application bearing IA

No.6279/2024, for condonation of delay of 93 days in filing of the appeal.

3. Since the appeal cannot be heard and decided on merits until and

unless the application for condonation of delay is decided, therefore, we are

deciding the applicationl bearing IA No.6279/2024 at the first instance.

4. The impugned order was passed on 07.03.2024 and the appeal has

been filed through e-filing on 23.07.2024.

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5. Section 421 of the Act provides Appeal from orders of Tribunal. Section

421 of the Act is as under:-

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 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) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal.

6. As per Section 421(1) of the Act, any person who is aggrieved by an

order of the Tribunal can file appeal before the Appellate Tribunal. As per

Section 421(2) of the Act no appeal is maintainable before the Appellate

Tribunal from an order which has been passed by the Tribunal on the consent

of the parties.

7. As per Section 421(3) of the Act every appeal which is to filed under

sub-section (1) has to be filed within a period of forty five days. However,

proviso to Section 421(3) of the Act empowers the Appellate Tribunal to 3

entertain the appeal after the expiry of period of 45 days but without further

extending it if it is satisfied that the appellant was prevented by sufficient

cause from filing the appeal within that period.

8. As per Section 421(3), the period prescribed for filing the appeal is 45

days. In the present case the impugned order was passed on 07.03.2024 and

the period of 45 days had expired on 22.04.2024. However, the appeal can

still be filed within another period of 45 days after the expiry of the prescribed

period of 45 days but by assigning sufficient cause for the delay.

9. In the present case if the other 45 days provided in the proviso are to

be counted from 22.04.2024 then it would come to an end on 07.06.2024.

10. However, the appeal has been filed on 23.07.2024 which means that

the appellant has availed another 46 days in filing the appeal beyond the

period of 45 + 45 days= 90 days.

11. Although the appellant has pleaded in para 6 of the application that the

period has been consumed in seeking legal opinion and collecting the

documents but the fact remain that the appeal has been filed much after

expiry of 90 days provided in Section 421(3) of the Act and its Proviso.

12. The language of Section 421(3) proviso clearly states that period beyond

45 days cannot be extended which means that this Tribunal does not have

the jurisdiction to condone the delay beyond the period of 90 days, therefore,

the application having been filed, seeking condonation of delay beyond the

period of 90 days, which is available to the appellant, is not within the

competence of this Tribunal to condone for extending the period of limitation. 4

13. In view of the aforesaid facts and circumstances, we are of the

considered opinion that there is no merit in the present application as the

delay which is sought to be condoned is beyond the jurisdiction of this

Tribunal and hence the application is dismissed.

14. Since we have dismissed the application, therefore, the appeal filed by

the appellant is not found to be duly constituted and hence the same is,

therefore, dismissed. No costs.

(Justice Rakesh Kumar Jain) Member (Judicial)

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