Jose Peter vs Henry James

Company Appeal (AT) (CH) No. 47/2023 Page 1 of 8 8. NERON SAVIO, Aged 25 years, Son of Dominic Savio, Manayil House, Golden Street, Vaduthala P.O., Cochin-682 023.,

9. JOSE EDWIN, Aged 41 years, Son of George Gomez, Kizhavanaparambil House, Pulikkapully Lane, Pachalam P.O., Cochin-682 012., Kerala

10. JOEMON ANTONY, Aged 30 years, Son of Antony V.J., Valiyaparambil House, Safdar Hashmi Lane, Pachalam P.Ο., Cochin-682 012., Kerala

11. JOMON PAUL, Aged 39 years, Son of Paul, Kalappurakkal House, Kannampilly Road, Pachalam P.O., Cochin 682 012., Kerala ... APPELLANTS

VERSUS

1. HENRY JAMES, Valiyaparambil House, Pachalam P.O., Cochin-682 012., Kerala

2. BHAGYODAYAM COMPANY, Chathiath, Cochin 682012 Ernakulam District, Kerala Represented by its Administrator

3. NIKHIL JOHN JOSEPH, Son of P.J. Joseph, Padinjattummuri House, TKC Road, Vaduthala P.Ο., Cochin 682 023., Kerala

4. DEEN DANGLER DEEFO, Son of T.C.Rockey, Thurakkal House, Etturuthil Lane, Pachalam P.Ο., Cochin-682 012 Kerala

5. GEORGE SHINE, Son of V.G. George,

Company Appeal (AT) (CH) No. 47/2023 Page 2 of 8 Valiyaparambil House, Pulikkapully, NKS Road, Pachalam P.O., Cochin-682 012., Kerala

6. ANTONY AUGUSTINE CORREYA, Son of Gasper Correya, Ambhat House, 1736, Correya Road, Pachalam P.O., Cochin-682 012., Kerala

7. SIMON T.J., Son of Joseph, Thengapurackkal House, Paul Abrao Road, Cochin-682 018., Kerala

8. JOSEPH VIVERA, Son of John Vivera, Thekkekanissery House, SSKS Lane, Green Line, Vaduthula P.Ο. Cochin 682023 Kerala

9. RINTU ANTONY, Son of Varghese, Chakkalakal House, Erattakulangara Road, Pachalam P.O., Cochin-682 012., Kerala

10. JOHN D'CRUZ, Son of Marcelin D'Cruz, Arakkal Veedu, J.H. Colony, Pachalam P.O., Cochin-682 012., Kerala

11. REGISTRAR OF COMPANIES, Company Law Bhavan, BMC Road, Thrikkakara P.O., Kakkanad Cochin 682 030 Kerala ... RESPONDENTS

Present: For Appellants : Mr. Ashok B. Shenoy, Advocate Mr. Arjun R. Naik, Advocate For Respondents : Ms. Gopika Nambiar, Advocate For Mr. Sharath Chandran, Advocate for R1 Mr. Vinay Mathew, Advocate For Mr. Philip Mathew, Advocate for R2

Company Appeal (AT) (CH) No. 47/2023 Page 3 of 8 JUDGMENT

(Hybrid Mode) [Per: Justice Sharad Kumar Sharma, Member (Judicial)

The Appellants in the instant Company Appeal challenge the Impugned

Order dated 21.12.2021, as rendered in CA/44(KOB)/2019. As a consequence of

the impugned order which was decided under proceedings held under section 59

of the Companies Act, the Learned Adjudication Authority had come to the

conclusion that the induction of Respondent No.2 to 20 in the said Company

Petition as new members of the Company by the Board of Directors of the

Company, was in violation of Article 1 to 5 of Article of Association of the

Company which deals with the matter of enrolment of the new members of the

company, and accordingly directed that their names be removed from the register

of members of the Respondent Company and that, the said register be modified

and an appropriate document be filed before the Registrar of Companies, Kerala.

The relevant directions given therein are extracted here under.

" 32. This Bench, on hearing both the parties at length and after perusing the case records came to the conclusion that the appellant has a strong case in the instant appeal. Accordingly, we allow the appeal and pass the following order:

We declare that enrolment of R2 to R20 as members of 1st Respondent Company was done in clear violation of the Articles of Association of the Company. As such they are directed to be removed from the Register of Members of the 1st Respondent Company and rectify the Register of Members accordingly and file appropriate documents before the Registrar of Companies,

Company Appeal (AT) (CH) No. 47/2023 Page 4 of 8 Kerala without delay, at any rate within a period of one month from the date of receipt of this order."

2. When the matter was taken up today the respondent's counsel raised a

preliminary objection that, the appeal under section 421 at the behest of the

appellant as against the Impugned Order would not be tenable since having been

preferred beyond the prescribed period of limitation as provided under section

421(3) of the Companies Act, and hence it deserved to be rejected at its threshold.

3. In support of his contention, the learned counsel for the respondent has

submitted that the following dates would be relevant for consideration, the aspect

of limitation to make the appeal sustainable before this Appellate Tribunal under

section 421.

i. The petition was decided by the order of 21.12.2021.

ii. The appeal was filed on 31.05.2022

iii. It is not correct to say that as per the order of Hon'ble Apex Court

in MA No. 665/2021 in Suo Moto WP(C) No.3/2020, the period of

limitation got extended upto 31.05.2022.

iv. The filing of the Appeal on 31.05.2022 is not within the period of

limitation as provided under Section 421(3) of the Companies Act,

2013, and also as per the extended period of limitation prescribed by

the order delivered in MA No.665/2021 in WP(C) No. 3/2022.

Company Appeal (AT) (CH) No. 47/2023 Page 5 of 8

4. According to the records of the registry this Company Appeal was

preferred before the Registry of the Tribunal on 31.05.2022, the date of

Impugned order is 21.12.2021 and the certified copy of the order was made

available on 23.12.2021. 90 days period from the date of receipt of the order

expired on 23.03.2022. Because of the order of Hon'ble Apex Court in MA

No. 21/2022 in MA No. 665/2021 in Suo Moto WP(C) No. 3/2022 the period

from 15.03.2020 till 28.02.2022 stood excluded for the purpose of limitation

in all judicial/quasi-judicial proceedings and all persons were allowed from

01.03.2022, a limitation period of 90 days or, actual balance period of

limitation remaining which ever is greater. The learned counsel for the

Respondent has argued that the 90-days period from 01.03.2022 would be

expiring on 29.05.2022 and in that eventuality, the appeal having been

preferred on 31.05.2022, the same would be barred by limitation and hence it

deserved to be rejected on this count itself.

5. After having heard the learned counsel for the parties on this aspect

with regards to the period of limitation, a reference to Section 421(3) of the

Companies Act which deals with the aspect of limitation becomes relevant.

On a simpliciter reading of section 421(3) it provides that every appeal against

an order shall be preferred within 45 days from the date on which a copy of

the order the Tribunal is made available to the person aggrieved, which in the

instant case would be 23.12.2021. The proviso to Section 421(3) states that

Company Appeal (AT) (CH) No. 47/2023 Page 6 of 8 the Appellate Tribunal can extend the said period further by a maximum of 45

days on production of sufficient cause. Thus, the limitation period as per

Companies Act expired on 23.03.2022. The limitation period of 90 days from

01.03.2022 as provided by the order of the Hon'ble Apex Court MA No.

21/2022 in MA No. 665/2021 in WP(C) No.3/2022 expired on 29.05.2022.

Since the said date was a Sunday, the next working day would be taken for the

purposes of determining the limitation which would be 30.05.2022. Therefore,

limitation period for filing the Appeal ended on 30.05.2022. Since the

Appellant did not file the Appeal within 30.05.2022 and instead chose to file

the same on 31.05.2022, it will have to be barred by limitation. The argument

of the learned counsel for the appellant that, since 29.05.2022 was Sunday, the

appeal couldn't have been filed and hence it is to be excluded from the period

of computation of limitation will not make any difference to the inference to

be drawn by us because in such a case limitation would be expiring on

30.05.2022. Since the appeal itself was filed on 31.05.2022 the same would

be barred by limitation because the upper period of limitation prescribed under

the proviso is not extendable beyond the limit given under the statute. In that

eventuality on a simpliciter determination of the number of days delay which

has chanced in preferring the appeal since being beyond the period of 90 days

which is the upper limit provided under Section 421(3) and also beyond the

extended limitation period as granted by Hon'ble Apex Court, the appeal

would stand barred by limitation.

Company Appeal (AT) (CH) No. 47/2023 Page 7 of 8

6. The learned counsel for the Appellant has contended before this

Appellate Tribunal in his written submission that the delay in filing the Appeal

was because of Covid Pandemic, and that it was neither wilful nor deliberate

and that they may be allowed to file a condone delay application in the interest

of justice. It is to be kept in mind that keeping this in view, Hon'ble Apex

Court has already given a period of limitation of 90 days starting from

01.03.2022 in its order in MA No. 21/2022 in MA No. 665/2021 in WP(C)

No. 3/2020 and it is expected that the parties to a dispute would comply by the

said order. Since the Appellants have failed to file its appeal within the time

given to all litigants in their country, it is clear that they have shown a complete

lack of diligence in pursuing their Appeal and hence no further leniency can

be granted, when it is specifically barred by law.

Accordingly, the Company Appeal (AT) (CH) No. 47/2023 is hereby

dismissed as barred by limitation.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical)

17.09.2025 GKJ/MS/RS

Company Appeal (AT) (CH) No. 47/2023 Page 8 of 8