K.Sekar vs M.Shreedevi

NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI (APPELLATE JURISDICTION) Company Appeal (AT) (CH) No. 35/2023 (IA Nos. 352, 353, 354, 355, 366/2023)) (Filed under Section 421 of the Companies Act, 2013) (Arising out of the Impugned Order dated 21/11/2019 in C.A./1248/2019, passed by the Hon'ble National Company Law Tribunal, Chennai Bench) In the matter of: K. Sekar & Anr. ...Appellants V M. Shreedevi & 3 Ors. ...Respondents Present : For Appellants : Mr. B. Arvind Srevatsa, Advocate.

For Respondents 1 to 3 : Mr. P.H. Arvindh Pandian, Senior Counsel For C.V. Shailandhran, Advocates.

(ORAL) ORDER

(Virtual Mode)

[Per; Justice Rakesh Kumar Jain (JM)]

19/04/2023: This Appeal is directed against the Order dated

21.11.2019, passed by the National Company Law Tribunal, Division

Bench, Chennai, by which an Appeal filed under Section 252 of the

Companies Act, 2013, (for short 'The Act'), has been allowed and the name

of the Company which was struck-off from the Register of Companies has

been restored.

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2. The present Appeal has been filed against the Order dated 21.11.2019,

on 27.02.2023 along with an Application bearing I.A. No.355/2023 for

Condonation of Delay of 1195 days in filing of the Appeal.

3. Counsel for the Appellant has submitted that firstly, the Appellant was

not a party to the Appeal which has been decided by the Ld. Tribunal and

secondly if the delay is not condoned then he will loose a case which is good

on merit.

4. We have heard Counsel for the Appellant/Applicant and perused the

record with his able assistance.

5. The present Appeal has been filed under Section 421 of the Act.

Section 421 of the Act is reproduced as hereunder:

421. (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

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(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(3) every Appeal is to be filed within a period of

45 days of the receipt of the certified copy of the Impugned Order. The

proviso to Section 421(3) further provides a window of 45 days for the

purpose of condoning the delay on showing sufficient cause for not filing the

Appeal in time.

7. However, in the present case, since, the Impugned Order was passed

on 21.11.2019, the period of 45 days prescribed for filing the Appeal under

Section 421(3) expired on 05.01.2020 and further period of 45 days which is

provided in the proviso to Section 421(3) expired on 09.02.2020. The Appeal

has been filed after a long delay of 1195 days. The reason given by the

Appellant is not sufficient because the Complaint itself was made by the

Appellant to the Registrar of the Company on 28.08.2020 i.e., much much

after the period of Limitation had expired and thereafter the Appellant

engaged in filing of a Writ Petition before the Hon'ble Madras High Court

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filed by the Appellant dated 28.08.2020 and 07.09.2020.

8. Thus, looking from any angle, we could not persuade ourselves to take

into consideration the fact that the Appellant has been prevented by a

sufficient cause for not filing the Appeal in time even otherwise the

Limitation had expired long before on 05.01.2020 and the period of 45 days

had also expired in the month of February, 2020.

9. In view thereof, the Application for condonation of delay is hereby

dismissed.

10. Since the Application has been dismissed, therefore, the Appeal is not

found to be duly constituted and the same is also dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Shreesha Merla] Member (Technical)

himanshu/md

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