M/S. Hira Multi Construction Ventures ... vs Mohammed Imtiyazuddin

NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI (APPELLATE JURISDICTION) IA No. 1418/2023 In Company Appeal (AT) (CH) No.115/2023 (IA No.1419/2023) In the matter of: M/s. Hira Multi Construction Ventures Pvt. Ltd., Formerly M/s. Hira Management Consultants Pvt. Ltd., CIN: U45209TG1998PTC02915 Capacity: Private Limited Company Rep. by its Authorised Signatory, Mr. Yahiya Khan, Having registered office at # 3-5-784/2. King Kothi & 'X' Road, Hyderabad, Telangana-500029. ... Appellant Vs

1. Mr. Mohammed Imtiyazuddin, S/o. Mohammed Vajiuddin, Aged: 61 years, Capacity: Promoter Shareholder & 1st Director, R/o H. No. 6-3-609/172, Flat No. 302, Anand Nagar Colony, Khairtabad, Hyderabad - 500 004, Telangana, India. ... Respondent No. 1

2. M/s. Greenscape Megaresorts Private Limited, CIN: U55101TG1994PTC018748, Capacity: Private Limited Company, Regd. Office: Flat No. 501, H. No. 4-1-358, Pride Residency, Hanuman Tekdi Hyderabad, Telangana - 500 001, India. ... Respondent No. 2

3. Mr. Zafar Alam (DIED), Died on 22.02.2021, His heirs, namely, respondents to Impleaded vide order dated 12.07.2022 in CA No. 35 of 2021 by the Hon'ble NCLT, Hyderabad Bench Was a R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad - 500 001. ... Respondent No. 3

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 1 of 25 4. Mr. Mohammed Fakhruddin (DIED), Died on 05.05.2021, His heirs, namely, respondents to Impleaded vide order dated 12:07 2002 in CA No. 48 of 2021 by the Hon'ble NCLT, Hyderabad Bench, Was a R/o. 11-5-145/A, Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 4

5. Mr. Mohammed Waheeduddin Azmi, S/o. Shamsuddin Azmi, Occupation: Business Capacity: Shareholder & 1st Director, R/o. H. No. 20-4-553, Qilwath-ur-Mubarak, Hyderabad - 500 003, Telangana. ... Respondent No. 5

6. Mr. Srikanth Reddy Gangireddy, S/o. G Lakshmi Narasimha Reddy, Occupation: Business Capacity: Managing Director, R/o. 2-2-1132/5, Prashanth Nagar, Shivam Road, New Nallakunta, Ambernagar, Hyderabad, Telangana - 500 044. ... Respondent No. 6

7. Mr. Reddy Gari Hanumanth Reddy, S/o. Reddy Gari Hanmanth Ramreddy, Occupation: Business Capacity: Additional Director, R/o. Flat-E202, Vertex Pleasant, Brindavan Estates, Nizampet Road, Kukatpally, Hyderabad, Telangana - 500 085. ... Respondent No. 7

8. M/s. Kancharla Constructions Pvt. Ltd., CIN: U45207TG2015PTC101413 Capacity: Private Limited Company, Having registered office at H.No.8-2-577/B, MAAS Heights, 3rd Floor, Road No. 8, Beside: Syndicate Bank, Banjara Hills, Hyderabad, Telangana - 500 034. ... Respondent No. 8

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 2 of 25 9. Sub-Registrar, Government of Telangana State, Parigi, Vikarabad District, Telangana. ... Respondent No. 9

10. Joint Sub-Registrar, Government of Telangana State, Chevvella, Ranga Reddy District, Telangana. Respondent No. 10

11. Mr. Mirza Firasat Baig, S/o Mirza Rafat Baig, R/o. 8-3-833/215, Kamalapuri Colony, Phase -2, Yousufguda, Hyderabad, Telangana - 500 045. ... Respondent No. 11

12. Registrar of Companies, Telangana, 2nd Floor, Corporate Bhavan, GSI Post, Bandlaguda, Nagole, Hyderabad - 500 068. ... Respondent No. 12

13. Ms. Nadeem Sultana, W/o Late Zafar Alam, Age: 55 years, Occ: Teacher, R/o. 4-1-358, Flat No. 503, Pride Residency, Abids, Hyderabad-500 001 ... Respondent No. 13

14. Mr. Zohair Mohammed, S/o Late Zafar Alam, Age: 23 years, Occ: Student, R/o, 4-1-358, Flat No. 503, Pride Residency, Abids, Hyderabad - 500 001 ... Respondent No. 14

15. Ms. Raida Rahma, D/o. Late Zafar Alam, Age: 25 years, Occ: Architect, R/o. 4-1-358, Flat No. 503, Pride Residency, Abids, Hyderabad-500 001 ... Respondent No. 15

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 3 of 25 16. Ms. Suha Shireen, D/o Late Zafar Alam, Age: 28 years, Occ: Pharmacist, D/o Late Zafar Alam, R/o. 4-1-358, Flat No. 503, Pride Residency, Abids, Hyderabad-500 001 ... Respondent No. 16

17. Ms. Suraiya Saher, D/o Late Zafar Alam, Age: 30 years, Occ: Doctor, Flat No.1,226 Derby Road, NG7 1NQ, Nottingham United Kingdom Also at: R/o 4-1-358, Flat No. 503, Pride Residency, Abids, Hyderabad-500 001. ... Respondent No. 17

18. Ms. Faqrunissa Faheem, W/o Late Dr. Fakhruddin Mohammed, Age: 59 years, Occ: Housewife, R/o 11-5-145/A, Red Hills, Khairatabad, Hyderabad - 500 004 ... Respondent No. 18

19. Mr. Mohammed Ahmeduddin, S/o Late Fakhruddin Mohammed, Age: 38 years, Occ: Private Service, R/o. 11-5-145/A, Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 19

20. Ms. Safia Fatima, D/o Fakhruddin Mohammed, Age: 31 years, Occ: Doctor, R/o. 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 20

21. Ms. Arshia Fatima, D/o Fakhruddin Mohammed, Age: 30 years, Occ: Doctor, R/o, 11-5-145/A, Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 21

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 4 of 25 22. Mr. Mohammed Azeemuddin, S/o Fakhruddin Mohammed, Age: 28 years, Occ: Doctor, R/o 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 22

23. Mr. Abdul Rahman Hadi Ali, S/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana-500029. Represented by his Power of Attorney Holders: Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori. (Power of Attorney dated 20.09.2020) Represented by his Power of Attorney Holders: Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori. (Power of Attorney dated 20.09.2020). ... Respondent No. 23

24. Mr. Mohammed Hadi Ali, S/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad Telangana - 500029. Represented by his Power of Attorney Holders: Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori. (Power of Attorney dated 20.09.2020) ... Respondent No. 24

25. Habib Abdul Razzaq Hadi Ali Al Baghdadi, S/o. Late Mohmmed Ali, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana - 500029. Represented by his Power of Attorney Holders: Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori (Power of Attorney dated 20.09.2020) ... Respondent No. 25

26. Mrs. Huda Hadi Ali, D/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana - 500029 Represented by her Power of Attorney Holders:

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 5 of 25 Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori. (Power of Attorney dated 20.09.2020) ... Respondent No. 26

27. Mrs. Khatija Begum, W/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana - 500029. Represented by her Power of Attorney Holders: Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori (Power of Attorney dated 20.09.2020) ... Respondent No. 27

Present : For Appellant : Mr. Krishna Dev, Advocate For Respondents : Mr. TK Bhaskar, Advocate for R1 Mr. Y. Suryanarayana, Advocate for R2 Ch. Veeranjaneyulu, PCS for R8 Mr. Venkata Rami Reddy, Advocate for R5, R18-R22

ORDER

(Hybrid Mode) 13.12.2024:

[Oral Judgment: Justice Sharad Kumar Sharma; Member (Judicial)]:

1. This Company Appeal is laid before us for consideration of the Condoned

Delay Application being IA No. 1418/2023, where the Appellant seeks a

condonation of delay, for the purposes of challenging the Impugned Order of

21.06.2023, as rendered in CP (IB) No. 184/241/HDB/2020. Infact, the

proceedings which have drawn by way of the aforesaid Company Petition were

the proceedings which was initiated under Section 59, 241 to be read with

Sections 242 & 244 of the Companies Act, 2013. For the purposes of considering

the issue, which has been elaborately argued by the Learned Counsel for the

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 6 of 25 parties, a description of the array of parties to the Appeal is required to be

extracted hereunder: -

M/s. Hira Multi Construction Ventures Pvt. Ltd., Formerly M/s. Hira Management Consultants Pvt. Ltd., CIN: U45209TG1998PTC02915 Capacity: Private Limited Company Rep. by its Authorised Signatory, Mr. Yahiya Khan, Having registered office at # 3-5-784/2.

King Kothi & 'X' Road, Hyderabad, Telangana-500029. ... Appellant

Vs

1. Mr. Mohammed Imtiyazuddin, S/o. Mohammed Vajiuddin, Aged: 61 years, Capacity: Promoter Shareholder & 1st Director, R/o H. No. 6-3-609/172, Flat No. 302, Anand Nagar Colony, Khairtabad, Hyderabad - 500 004, Telangana, India. ... Respondent No. 1

2. M/s. Greenscape Megaresorts Private Limited, CIN:

U55101TG1994PTC018748, Capacity: Private Limited Company, Regd. Office: Flat No. 501, H. No. 4-1-358, Pride Residency, Hanuman Tekdi Hyderabad, Telangana - 500 001, India. ... Respondent No. 2

3. Mr. Zafar Alam (DIED), Died on 22.02.2021, His heirs, namely, respondents to Impleaded vide order dated 12.07.2022 in CA No. 35 of 2021 by the Hon'ble NCLT, Hyderabad Bench Was a R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad - 500 001. ... Respondent No. 3 IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 7 of 25

4. Mr. Mohammed Fakhruddin (DIED), Died on 05.05.2021, His heirs, namely, respondents to Impleaded vide order dated 12:07 2002 in CA No. 48 of 2021 by the Hon'ble NCLT, Hyderabad Bench, Was a R/o. 11-5-145/A, Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 4

5. Mr. Mohammed Waheeduddin Azmi, S/o. Shamsuddin Azmi, Occupation: Business Capacity: Shareholder & 1st Director, R/o. H. No. 20-4-553, Qilwath-ur-Mubarak, Hyderabad - 500 003, Telangana. ... Respondent No. 5

6. Mr. Srikanth Reddy Gangireddy, S/o. G Lakshmi Narasimha Reddy, Occupation: Business Capacity: Managing Director, R/o. 2-2-1132/5, Prashanth Nagar, Shivam Road, New Nallakunta, Ambernagar, Hyderabad, Telangana - 500 044. ... Respondent No. 6

7. Mr. Reddy Gari Hanumanth Reddy, S/o. Reddy Gari Hanmanth Ramreddy, Occupation: Business Capacity: Additional Director, R/o. Flat-E202, Vertex Pleasant, Brindavan Estates, Nizampet Road, Kukatpally, Hyderabad, Telangana - 500 085. ... Respondent No. 7

8. M/s. Kancharla Constructions Pvt. Ltd., CIN: U45207TG2015PTC101413 Capacity: Private Limited Company, Having registered office at H.No.8-2-577/B, MAAS Heights, 3rd Floor, Road No. 8, Beside: Syndicate Bank, Banjara Hills, Hyderabad, Telangana - 500 034. ... Respondent No. 8

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 8 of 25

9. Sub-Registrar, Government of Telangana State, Parigi, Vikarabad District, Telangana. ... Respondent No. 9

10. Joint Sub-Registrar, Government of Telangana State, Chevvella, Ranga Reddy District, Telangana. ...Respondent No. 10

11. Mr. Mirza Firasat Baig, S/o Mirza Rafat Baig, R/o 8-3-833/215, Kamalapuri Colony, Phase -2, Yousufguda, Hyderabad, Telangana - 500 045. ... Respondent No. 11

12. Registrar of Companies, Telangana, 2nd Floor, Corporate Bhavan, GSI Post, Bandlaguda, Nagole. ... Respondent No. 12

13. Ms. Nadeem Sultana, W/o Late Zafar Alam, Age: 55 years, Occ: Teacher, R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad-500 001. ... Respondent No. 13

14. Mr. Zohair Mohammed, S/o Late Zafar Alam, Age: 23 years, Occ: Student R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad - 500 001. ... Respondent No. 14

15. Ms. Raida Rahma, D/o Late Zafar Alam, Age: 25 years, Occ: Architect, R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad-500 001. ... Respondent No. 15 IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 9 of 25

16. Ms. Suha Shireen, Age: 28 years, Occ: Pharmacist, D/o Late Zafar Alam, R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad-500 001. ... Respondent No. 16

17. Ms. Suraiya Saher, D/o Late Zafar Alam, Age: 30 years, Occ: Doctor, Flat No.1,226 Derby Road, NG7 1NQ, Nottingham United Kingdom Also at:

R/o 4-1-358, Flat No. 503, Pride Residency Abids, Hyderabad-500 001. ... Respondent No. 17

18. Ms. Faqrunissa Faheem, W/o Late Dr. Fakhruddin Mohammed, Age: 59 years, Occ: Housewife, R/o 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 18

19. Mr. Mohammed Ahmeduddin, S/o Late Fakhruddin Mohammed, Age: 38 years, Occ: Private Service, R/o 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 19

20. Ms. Safia Fatima, D/o Fakhruddin Mohammed, Age: 31 years, Oce: Doctor, R/o 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 20

21. Ms. Arshia Fatima, D/o Fakhruddin Mohammed, Age: 30 years, Occ: Doctor, R/o 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 21 IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 10 of 25

22. Mr. Mohammed Azeemuddin, S/o Fakhruddin Mohammed, Age: 28 years, Oce: Doctor, R/o 11-5-145/A Red Hills, Khairatabad, Hyderabad - 500 004. ... Respondent No. 22

23. Mr. Abdul Rahman Hadi Ali, S/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad.

Telangana-500029.

Represented by his Power of Attorney Holders:

Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori.

(Power of Attorney dated 20.09.2020) Represented by his Power of Attorney Holders:

Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori. (Power of Attorney dated 20.09.2020). ... Respondent No. 23

24. Mr. Mohammed Hadi Ali, S/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi Himayath Nagar, Hyderabad Telangana - 500029 Represented by his Power of Attorney Holders:

Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori.

(Power of Attorney dated 20.09.2020) ... Respondent No. 24

25. Habib Abdul Razzaq Hadi Ali Al Baghdadi, S/o. Late Mohmmed Ali, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana - 500029 Represented by his Power of Attorney Holders:

Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori (Power of Attorney dated 20.09.2020) ... Respondent No. 25

26. Mrs. Huda Hadi Ali, D/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana - 500029

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 11 of 25 Represented by her Power of Attorney Holders: Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori.

(Power of Attorney dated 20.09.2020) ... Respondent No. 26

27. Mrs. Khatija Begum, W/o. Habib Abdul Razzaq Hadi Ali Al Baghdadi, R/o. 3-5-784/2, King Kothi, Himayath Nagar, Hyderabad, Telangana - 500029 Represented by her Power of Attorney Holders:

Mr. Yahiya Khan and Mr. Mohammed Irfan Mohiuddin Ghori (Power of Attorney dated 20.09.2020) ... Respondent No. 27

2. The Company Petition itself was instituted by one Mr. Mohammed

Imtiyazuddin, in which the present Appellant was one of the opposite parties, as

an opposite party No. 7 to the Petition. The Company Petition was adjudicated

by the NCLT vide its Order of 21.06.2023, holding thereof, that the proceedings

of the Company Petition, would not be barred by limitation. The knowledge of

this order of 21.06.2023, itself was shown to be attributed to the Appellant,

according to his own pleading as raised in the additional affidavit filed in the IA

No. 1418/2023, which is under consideration today. Wherein, it is an admitted

fact that the knowledge of the Impugned Order, was made available to the

knowledge of the Appellant on 14.07.2023, which stands a fact reiterated and

accepted by the Appellant in Para 32 of the Memo of Appeal itself, where in his

pleadings he deals with the question of limitation. If there were any grievances to

the Appellant, as against the Impugned Order of 21.06.2023 and when knowledge

of the Order was attributed to him on 14.07.2023, which is a fact not disputed by

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 12 of 25 the Appellant, for the purposes of preferring of the Appeal under Section 421 of

the Companies Act, that would have accrued to him from the date when the Order

was rendered or atleast from the date when he procured the knowledge of the

Order i.e., 14.07.2023. But the same was not done by filing the appeal, or resort

to judicial proceedings, within the specified time frame as prescribed under

Section 421(3) of the Companies Act, for preferring the Appeal as against the

Impugned Judgement of 21.06.2023.

3. The provisions contained, under Section 421(3) of the Companies Act,

prescribes that the period of limitation which has been given therein would be

within 45 days from the date on which the copy of the order/Judgment of the

Tribunal is made available or brought to the person aggrieved and shall be filed

before the Appellate Tribunal in such form accompanying with such fees as it

may be prescribed and which has been made extendable for the further period of

the upper limit of 45 days exclusively at a discretion, which could be exercised

by the Appellate court only after being satisfied with the sufficient cause for

delay, owing to the language used under the proviso to Section 421(3) of the

Companies Act, it is absolutely clear that it cannot be extended beyond total 90

days as prescribed from the date of the rendering of the Order or if it could be

stretched to any imagination; it could be from the date of uploading of the Order

or from the date of receipt of the certified copy. So far as the instant case it is

concerned beyond 14.07.2023.

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 13 of 25

4. The argument of the Learned Counsel for the Appellant in support of the

Condone Delay Application is that, a clarification application was preferred by

the Appellant being the first clarification application which stood adjudicated on

18.07.2023, which was preferred by the Company Petitioner, seeking rectification

of the Order of 21.06.2023. The question would be that as to whether at all an

order rendered subsequently on rectification application preferred by the

Company Petitioner, of which the present Appellant was an opposite party No. 7,

could at all be taken as to be the basis for a cutoff for the purposes for determining

the limitation prescribed under Section 421(3). This would be dealt with by this

Appellate Tribunal in the later part of the Order.

5. In further elaboration to his argument, the Learned Counsel for the

Appellant/Opposite Party No. 7, to the Company Petition submits that, for the

purposes of determining the limitation under Section 421(3), in his case it has to

be considered from the date of an order, which was passed on 25.07.2023, on the

Rectification Application, which was yet again recurringly preferred by the

Company Petitioner of the CP No. 184/241/HDB/2020. The aforesaid analogy

and tenacity of argument of the Learned Counsel for the Applicant from the

prospective that the determination of the limitation for the purposes of institution

of the Appeal, for the Appellant would start running from 25.07.2023, would not

be acceptable by this Appellate Tribunal, for the reason being that accrual of

cause of action for him to prefer an appeal, if at all he was aggrieved against the

Impugned Order of 21.06.2023, would have been from the date when the Order

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 14 of 25 was rendered or atleast the date when he got the knowledge of the order i.e.,

14.07.2023.

6. But the Appellant for the reasons best known to himself has opted out not

to prefer an Appeal within the statutory period of limitation, if it is determined

even from the date of his knowledge. Hence, as of now, he cannot take a plea,

that he awaited the decision to be taken on the Rectification Application, which

was preferred by the Company Petitioner for the purposes of seeking a benefit of

limitation under Section 421 (3), for filing of an Appeal. Because he cannot be

permitted to seek for getting the benefit of limitation on an application preferred

by the Company Petitioner, because filing of a Company Application for the

purposes of seeking clarification by the Company Petitioner was exclusively his

proragative and it was exclusively not a scope or a latitude, which was available

or contemplated under law, which could be made available to the Appellant to be

derived for the purposes of determining the benefit of limitation for preferring the

Appeal.

7. This Appellate Tribunal is of a considered view, that had it been that the

Appellant, who was an Applicant to the clarification application then, only this

argument could have been appreciated, but not otherwise particularly in the

instant case it was the Company Petitioner himself who has sought a clarification

of the order and that was decided on 18.07.2023 and 25.07.2023, and hence it

cannot be presumed that the Appellant had awaited the filing of an application

for clarification, he awaited the filing of the application by the Company

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 15 of 25 Petitioner, and awaited for passing of an order on the clarification application and

then only he had preferred an Appeal by filing the same only on 15.11.2023, and

that too when the factum of knowledge of the Impugned Order was known to him

from 14.07.2023 itself, which is apparent from his pleading.

8. Appellant had attempted to argue the principle of merger, arguing that as

the Principal Order was rendered on 21.06.2023, would stand merged with the

subsequent orders passed clarification on the application which was preferred by

the Company Petitioner, infact this is a principle which is unknown to law, that a

clarification order could be at all be treated, as to be the main order for the

purposes of merger of the main Order passed under the principal Company

Petition, rather it would be other way around. So far as the cause of action for the

Appellant, for preferring the Appeal as against the Impugned Order of 21.06.2023

is concerned, that should have been well within the period of 90 days from the

date of the principal Impugned Order, which has given the cause for filing of

appeal, which is the upper limit prescribed under Section 421 (3), and which

would automatically expire after the expiry of 90 days period, which is the upper

limit but since the Appeal was preferred at a much belated stage after a period of

146 days, if it is determined from 21.06.2023, after 119 days, as determined from

the date of the second order of 18.07.2023 and after 112 days, if it is determined

from the date of the third order of clarification i.e., 25.07.2023. But under any of

the circumstances, the Company Appeal would be barred by limitation and it will

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 16 of 25 not be falling within the condonable ambit of Section 421 (3), where the limitation

at all could be extended.

9. It has been argued by the Learned Counsel for the Respondent in

opposition to the application for seeking condonation of delay that, infact it is

absolutely a false pretext, which has been developed by the Appellant for seeking

a condonation of delay for the reason being that infact the Appeal has been

preferred by a Power of Attorney holder, who himself was a Power of Attorney

holder in other appeals too, arising from same Impugned Order, which has been

filed well within the limitation period. If that be so, no exclusion of limitation

could be granted, to the same attorney holder who is the attorney holder of the

instant Appeal and as such, the said plea of limitation as argued by the Learned

Counsel for the Appellant will not be available.

10. The entire controversy could also be looked into from yet another

perspective and as it has also been argued by the Learned Counsel for the

Appellant, while placing reliance on the Order of the Hon'ble High Court of

Judicature at Madras (Madurai Bench) as rendered by the single judge in

WP(MB) No. 27787 & 27788/2024, M/s. SPK & Company Vs State Tax

Officer, which was rendered by the Hon'ble High Court in the exercise of its

inherent jurisdiction under article 226 of the Constitution of India and this

Appellate Tribunal has to be conscious of the fact that, the parameters for

determining the aspect of limitation under an Appellate jurisdiction provided

under the statute, is not akin to the aspect of limitation and latches for considering

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 17 of 25 the aspect of limitation under Article 226 of the Constitution of India, in the

appellate jurisdiction of Company Appeal where particularly the law prescribes

that, the upper limit of limitation could not be extended under any of the

circumstances beyond that, what has been prescribed under Section 421 (3). The

Learned Counsel for the Appellant heavily relies upon the contents of the Para-5

of the said Order but with due reverence at my command, Para-5 of the said Order

is not a ratio laid down by the court after considering the respective contentions,

but rather it was only an expression given while dealing with the argument

extended by the Learned Counsel for the Petitioner therein and hence it would be

of no relevance for the purposes of the instant Company Appeal for the purposes

of considering the Delay Condonation Application. In answer to it, the Learned

Counsel for the Appellant has submitted that infact the ratio has been considered

by the Learned Single Judge of the Hon'ble Madras High Court, in the matters of

M/s. SPK & Company (Supra) in the Para-6 of the said Order which is extracted

hereunder: -

"6. In the present case, the original order of assessment was made on 07.08.2024 and the order in rectification was made on 12.11.2024. Therefore, the period of limitation for challenging the order of assessment dated 07.08.2024 shall start ticking from the date of rejection of the rectification application i.e., from 12.11.2024. It is made clear that when the appeal is filed by the assessee as against the original order of assessment, the period of limitation shall be calculated from the date on which the rectification had been dismissed."

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 18 of 25 11. Infact, if the said Order is taken into consideration, it is yet again only

simpliciter prescribes that the period of limitation has to be considered from the

date of the order of rectification which too was a conclusion derived without

assigning any logic as to what is the rationale behind it, as to why the limitation

is to be considered from the date of the principal order or from the date when the

order of rectification when it was rendered.

12. There is another reason why this Appellate Tribunal is not agreeing with

the argument extended by the Learned Counsel for the Appellant, that this aspect

of rectification as contemplated under Section 154 of the NCLT Rules, cannot be

utilized by the Appellant or any party to the proceedings, to be used as a weapon

to seek the benefit of limitation by recurrently filing the applications one after

another and that too particularly when in the instant case, the Appellant is not an

Applicant to the application under Rule 154 of the NCLT Rules, and hence it

cannot take an advantage of an application preferred under Rule 154, by the

Company Petitioner of, which the Appellant was an opposite party to the

proceedings. It cannot be said that being Respondent in Company Petition, he

awaited to be passed on the rectification application filed by the Company

Petitioner. Thus, the ratio laid down in Para-6 of the said Order will be of no

relevance for the purpose of justification of exonerating limitation as it has been

argued by the Learned Counsel for the Appellant.

13. The Learned Counsel for the Appellant had further made reference to yet

another Order of the Principal Bench as reported in 2024 SCC Online NCLAT

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 19 of 25 1036 Yerramaneni Ramakrishna and Ors. Vs. Sheth Developers Pvt. Ltd. &

Ors. Infact, if the ratio laid down in the said Order is taken into consideration,

therein that may not fall to be applicable under the facts and circumstances of the

instant case where the Applicant to the Rectification Application was the

Company Petitioner and not the Appellant himself. Hence, the benefit of the

interpretation given by the Principal Bench, may be of no relevance for the

Appellant for the purposes of condonation of delay, as it has been sought by the

Learned Counsel for the Appellant while placing the reliance on the same and

that too while keeping in mind that, under either of the circumstances in

accordance with the case as portrayed by the Appellant himself, either if he

computes the limitation period from the date of the Principal Order i.e.,

21.06.2023 or even till, from the date of the last rectification of the order i.e.,

25.07.2023. Under all of the circumstances, the limitation on the date on which

appeal was filed was beyond the period prescribed under Section 421 (3). Hence

the limitation could not be extended by virtue of the instant Application, which

has been preferred by the Appellant. In response to it, the Learned Counsel for

the Respondent No. 1 had made reference to catena of Orders in the compilation,

as supplied by him before this Appellate Tribunal so as to meet out the arguments

extended by the Learned Counsel for the Appellant and particularly, he has made

reference to the Order, as reported in (1938) 47 LW 474, Page 477 Pakkiri

Muhammad Rowther v L Swaminatha Mudaliar. On the basis of the said case,

the Learned Counsel for the Appellant had submitted that if the ratio propounded

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 20 of 25 therein is taken into consideration, infact the argument as extended by the

Learned Counsel for the Appellant, while supporting his arguments from the

Orders relied upon may not be sustainable owing to the ratio which has been

determined by the said Order of the Pakkiri Muhammad Rowther v L Swaminatha

Mudaliar (Supra) and particularly the reference made by him to the observations,

which has been made in the concluding paragraph of the said Order.

13.1. In order to meet out the arguments of the Learned Counsel

for the Appellant, which he has extended on the basis of the Order M/s.

SPK & Company (Supra) as rendered by the Hon'ble High Court of

Judicature at Madras. The Learned Counsel for the Respondent had

made reference to yet another Order as reported in 1987 SCC Online

Gujarat 83, Page 135 Himatlal J Vakharia v Urban Land Tribunal

& Anr., and while referring to para 4 of the said Order, he has submitted

that the principles as argued by the Learned Counsel for the Appellant,

in the context of the powers vested with the courts to rectify the orders,

that may not be arithmetically and universally made applicable for the

purposes of determining the limitation and that has to be construed from

the date of the principal order which has been rendered by the

adjudicating body which would the date of accrual of cause of action,

of which any party who intends to invoke an appellate jurisdiction can

await the remedy to file the Appeal. The principle which has been

widely considered in para 4 of the said Order is extracted hereunder: - IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 21 of 25

"S. 45. Clerical or arithmetical mistakes in any order passed by any officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority either on his or its own motion or on an application received in this behalf from any of the parties."

The aforesaid section is in pari materia with S. 152 of the C.P.C., 1908. The underlying object behind making provisions of S. 45 of the Act is to see that whenever on account of clerical or arithmetical mistake intention of the authority is left in doubt or not properly articulated, the same should be corrected. Rather it is the duty of the authority concerned to rectify the clerical error arising from an accidental slip or omission. When such mistakes are corrected, the original order passed by the authority is not replaced or superseded nor the same is materially altered by correction of mistake. All that is done by the authority is that the apparent anomaly arising out of error or mistake is removed. But the substance of the Order or order originally passed remains the same.

Different considerations may arise when an order is reviewed and ai the end of review proceedings, if a new Order or order comes into existence superseding the original one. But that is not the case insofar as the facts of this matter are concerned."

14. The controversy under consideration was from the aspect of exercise of

powers under Section 152 of CPC. The question as to what implication, the

application for rectification of the Order would have, from the prospective of

determining the period of limitation for preferring of a statutory appeal, under a

special law where limitation plays a pivotal role, as the proceedings under special

law being intended to be a time bound process. In answer to the Order relied upon

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 22 of 25 by the Learned Counsel for the Appellant emanating from the Order of the

Hon'ble Gujarat High Court, the Learned Counsel for the Respondent has made

a reference to the Order as reported in 1987 SCC Online ILR (1966) Punjab

and Haryana Page 467. In the said Order, the Division Bench of the Hon'ble

Punjab and Haryana High Court, was considering the aspect of implications of

Section 152 of the CPC and while dealing with the implications, as to what

bearing would the application preferred under Section 152 of CPC, would have

had drawn the attention of this Appellate Tribunal to the observations made in the

aforesaid Order as extracted hereunder: -

"It is clear from the above discussion of the case law that the Calcutta Court has gone to the length of laying down that any kind of amendment or correction made in a Order or decree irrespectively of whether it was made on review under Order 47, or under section 152 brings into existence a fresh Order or decree and an appeal would be competent only from them. The Allahabad and the Lahore Courts had to deal with cases which were of a different nature and in which it appears that review application had been entertained and allowed. The approach of the Madras Court has been that it will have to be seen whether the procedure laid down by Order 47, for review was followed in a particular case and if it has been followed and an amendment has been ordered, as a result of the review proceedings, in the Order or decree, an appeal would lie from the amended Order or decree but if the correction of an error or mistake has been made under section 152 of the Code, then no fresh Order or decree comes into existence and the appeal would be perfectly competent from the decree as originally passed. With respect I am inclined to follow the Madras view because in my opinion correction of a

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 23 of 25 mistake or an error under the provisions of section 152 does not supersede the originad judgment or decree. All that the Court does is to rectify a clerical error arising from an accidental slip or omission and it is the duty of the Court to correct it whenever it comes to its notice or is brought to its notice by any of the parties. In case the intention of the Court is quite clear and if by some clerical error or omission that intention is left in doubt or is not propenly effectuated, then use can be made of the powers under section 152 and indeed the Court is bound to correct such errors or mistakes, which fall within the ambit of section 152. The considerations which prevail in entertaining a review petition and - directing any amendment in a judgment or decree under the provsions contained in Order 47 are quite different. Where a judgment or decree is amended as a result of proceedings taken under Order 47, a new judgment or decree comes into existence and supersedes the original one but that cannot be said about any correction or amendment directed or made under section 152 of the Code."

15. This Appellate Tribunal as observed, that any rectification application or

order passed on it, which has been made subsequent to the principal Order, will

not be construed to be the basis determined as to be a cutoff for the purposes of

computing the limitation under the special Act which contemplates a strict time

bound process, because the scope of rectification under Section 152 of the CPC,

cannot be indicated to act as a substitute to the principal Order.

16. As far as the instant Company Appeal is concerned apart for the aforesaid

ratio, another aspect which is required to be taken into consideration that, though

this Appellate Tribunal has already considered that, the Appellant had the

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 24 of 25 knowledge of the Order on 14.07.2023. But invariably all the certified copies of

the Order, which have been placed on record, they are shown to have been applied

by the Appellant on 03.11.2023, there is no justification as to why the Appellant,

who had the knowledge of the Impugned Order on 14.07.2023, had not applied

to procure the certified copy of the order within the prescribed period of limitation

and had awaited the decision to be taken on the rectification application filed by

Respondent/Company Petitioner in 25.07.2023 and even thereafter, also sitting

over the issue applying for the certified copy of the order only after the expiry of

the period by 90 days i.e., only on 03.11.2023. Thus, under all the given

circumstances, the Delay Condonation Application deserves to be rejected.

Accordingly, IA No. 1418/2023 is hereby rejected and as a consequence thereto

the Company Appeal (AT) (CH) No. 115/2023, is too laid to rest.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] RO/TM/MS Member (Technical)

IA No. 1418/2023 In Comp App (AT) (CH) No. 115/2023 Page 25 of 25