Laly Joseph vs Indo - Asian News Channel Private ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI (APPELLATE JURISDICTION) Company Appeal (AT)(CH) No.54/2023 IA No.620/2023 (Under Section 421 of Companies Act, 2013) (Arising out of the Impugned Order dated 23.02.2023 in IA/194/KOB/2020 in IA/(C/ACT)55/KOB/2019 in TCP/20/KOB/2019, passed by the Hon'ble National Company Law Tribunal, Kochi Bench) In the matter of: Laly Joseph ...Appellant V Indo Asian News Channel Pvt. Ltd. & 3 Ors. ...Respondents Present : For Appellant : Mr. A M Sridharan, Advocate. For Respondents : None. ORAL ORDER

(Virtual Mode) [Per; Justice Rakesh Kumar Jain (MJ)] 12.07.2023: This Appeal has been filed against the Order dated

23.02.2023, by which an Application IA/194/KOB/2020 filed by the

Appellant under Section 242(4) of the Companies Act, 2013, (for short `The

Act') read with Rule 11 of the NCLT Rules, 2016, (for short the `Rules') to

reject the Report of fourth Respondent dated 06.06.2020 and in regard to

appointment of Mr. Joseph, partner M/s. R.M.S. & Associates and etc., has

been dismissed.

2. The Appeal has been filed alongwith an Application bearing I.A.

No.620/2023 seeking Condonation of Delay of 43 days in filing of the

Comp. App. (AT) (CH) No. 54/2023 Page 1 of 5 present Appeal. Before the Appeal could be held to be duly constituted, the

Application for Condonation of Delay is required to be dealt with.

3. Counsel for the Appellant has submitted that as per Section 41(3), the

Appeal had to be filed within a period of 45 days from the date of passing of

the Impugned Order but it could not be filed within the said period and has

been filed after expiry of 43 days but with the extended period of 45 days

which is so provided in the proviso to Section 421(3) of the Act. He has thus

prayed that the delay in filing of the Appeal may be condoned. Counsel for

the Appellant has referred to paragraphs 2.1, 2.2 & 2.3 of his Application for

the purpose of constituting sufficient cause. The said paragraphs are being

reproduced as hereunder:

"2.1. The appellant was under bonafide impression that as the tribunal below did not make any order on merits on IA/194/KOB/2020 in IA/C/ACT)/55/KOB/2019 in TCP/20/KOB/2019 but also made an order on 23.02.2023 that the IA has become infructuous as the tribunal below elaborately discussed the 4th respondent report and passed interim order dated 18/05/2022 relying/accepting the said report, there is no need to file a separate appeal against the order dated 23/02/2023 made in IA/194/KOB/2020 in IA/C/ACT0/55/KOB/2019 in TCP/20/KOB/2019 as the present order got merged with the interim order dated 18/05/2022 and an appeal is already filed against the interim order dated 18/05/2022 and the same is pending before this Hon'ble Tribunal. 2.2. The appellant submits that now she has come to know that a separate appeal against the order dated 23/02/2023 made in IA/194/KOB/2020 in IA/C/ACT0/55/KOB/2019 in TCP/20/KOB/2019

Comp. App. (AT) (CH) No. 54/2023 Page 2 of 5 needs to be filed as the tribunal below relied only on the index of the report and a portion of the report of the 4th respondent and passed interim order dated 18/05/2022. Hence, IA/194/KOB/2020 has not become infructuous and an appeal needs to be filed.

2.3. The appellant submits that the delay in filing the appeal is not wanton. As the appellant was under bonfide impression that appeal need not be filed against the order dated 23/02/2020 made in IA/194/KOB/2020, she did not file the appeal within original period of 45 days and would be filing the appeal only on 26/05/2023 resulting in a delay of 43 days. Hence, the appellant has sufficient cause for not filing the appeal within time. It is pertinent to note that the further period of 45 days would be expiring on 28/05/2023."

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

with his able assistance.

5. During the course of hearing, Counsel for the Appellant has submitted

that the Report dated 06.06.2020 has been taken into consideration by the

Learned Tribunal while passing an Interim Order on 18.05.2023 against

which the Appellant has already preferred an Appeal bearing Comp. App.

(AT) (CH) No. 98/2022. It is further submitted that the final Order has been

passed in the main Petition on 23.04.2023 by the Tribunal against which also

the Appellant has filed an Appeal bearing Comp. App. (AT) (CH)

No.34/2023. It is submitted that the present Appeal has been filed against the

Order dated 23.02.2023 because of its independent cause of action.

6. Section 421 of the Act provides for the Appeals from Orders of

Tribunal which is reproduced as hereunder:

Comp. App. (AT) (CH) No. 54/2023 Page 3 of 5

"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 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."

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.

Comp. App. (AT) (CH) No. 54/2023 Page 4 of 5 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.

9. For the reasons mentioned above, the present Application is hereby

dismissed. As a result thereof, the Appeal which is not duly constituted is

also dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mrs. Shreesha Merla] Member (Technical)

HA / MD / NG

Comp. App. (AT) (CH) No. 54/2023 Page 5 of 5