Mr. Vikas Chowdhary vs Blackberry Projects Private Limited & ...

Vikas Chowdhary ...Appellant(s)

Versus

Blackberry Projects Pvt. Ltd. & Anr. ...Respondent(s)

Present: For Appellant : Appeared but not marked appearance.

For Respondents : Ms. Shiva Lakshmi, CGSC, Mr. Madhav Bajaj, Mr. Govind Sharma, Advocates for R-2.

ORDER

(Hybrid Mode)

13.05.2025: This appeal has been filed by Mr. Vikas Chowdhary,

Director of Blackberry Projects Private Limited against the order dated

07.06.2023 in CP No. 173/KB/2021 (Impugned Order) passed by Ld. NCLT,

Kolkata wherein petition filed by the Registrar of Companies, (RoC), West

Bengal, Ministry of Corporate Affairs under Section 271 read with Section 272

of the Companies Act, 2013 for initiation of winding up proceedings against

M/s Blackberry Projects Private Limited (Respondent No. 1) was admitted.

2. Before the Ld. NCLT, the RoC, West Bengal had filed CP No.

173/KB/2021 to initiate winding up proceedings under Section 271 and 272

of the Companies Act, 2013 against M/s Blackberry Projects Private Limited

(Respondent No. 1).

3. It was submitted that Ministry of Corporate Affairs had ordered inquiry

and examination of books of accounts of the Respondent No. 1 company as 2

the said company was found by the Income Tax Department to be involved in

providing entries or was beneficiary thereof. The RoC, West Bengal submitted

a report dated 03.10.2018 containing findings and recorded various violations

of the provisions of the Companies Act. The Regional Director (ER), Kolkata

on the basis of the said report, duly informed the Secretary to Government of

India, Ministry of Corporate Affairs of various violations of terms of the

provisions of the Companies Act, 2013 by the Respondent No. 1 company,

with recommendation for authorising the ROC to file petition before the

Tribunal under Section 272 (1) (d) of the Companies Act, 2013 for winding up

of the company in terms of the provisions of Section 271 (e) of the Companies

Act, 2013.

4. During the proceedings before the Ld. NCLT, the Appellant and the

Respondent No. 1 company did not attend the proceedings. Vide order dated

27.10.2022, the Ld. NCLT directed the petitioner to cause publication of an

advertisement of the petition under rule 7 of the Companies (Winding Up)

Rules, 2020. In compliance of said order, the RoC filed an affidavit of service

dated 29.12.2022 confirming publication of notice in two newspapers, one in

English and one in Bengali on 01.12.2022.

5. Despite such publication of notice, no one came forward to oppose the

petition before the Ld. NCLT. Thereafter, the petition was admitted by the Ld.

NCLT and official liquidator attached with the High Court of Calcutta was

appointed as the 'company liquidator' vide order dated 07.06.2023.

6. Though the said order of Ld. NCLT was passed on 07.06.2023, the

present company appeal viz. Company Appeal (AT) No. 62 of 2024 has been e-

Company Appeal (AT) No. 62 of 2024 3

filed on 08.02.2024 and the hard copy was presented on 13.02.2024.

However, in its oral arguments, the Learned Counsel for the Appellant stated

that the appeal has been filed on 30.01.2024. In the application for

condonation of delay (IA No. 1324 of 2024), the Appellant has submitted as

under in para 5 and 6 of the said application and has requested for

condonation of delay of 201 days in filing the captioned appeal:

"5. Further the Impugned Order dated 07.06.2023 by the passed by Ld. National Company Law Tribunal, Kolkata Bench, Bench-II was only communicated or was brought in the knowledge of the Appellant only on 02.11.2023 when the Office of Official Liquidator had come to take physical possession of the Register office of Respondent No.1 Company.

6. That the Appellant is a resident of Kolkata and since the knowledge of the impugned order on 2.11.2023, the Appellant is trying all measure to arrange lawyers in New Delhi for filing of the Appeal before the Hon'ble NCLAT and that the delay is non deliberate and the Appellant was pursuing the matter for representation before the New Delhi."

7. The Learned Counsel for the Appellant submitted that since the

order came to the knowledge of the Appellant only on 02.11.2023, the

limitation may be counted from this date.

8. Heard.

9. We see that the appellant at two places in para 5 of the IA No. 1324

of 2024 and in list of dates at page 6 and 7 of the appeal paper book has

admitted that the copy of the impugned order was communicated to him

by the official liquidator on 02.11.2023. If we count the limitation from

Company Appeal (AT) No. 62 of 2024 4

the date of the order, more than 200 days have elapsed. Even accepting

the best case of the appellant that he had come to know of the impugned

order on 02.11.2023, we find that the appeal has been e-filed on

08.02.2024, which is beyond the period of 90 days. We note that in the

list of dates, the date of appeal is given as 05.02.2024. The date given in

the memo of parties at page 2 of the appeal paper book is 02.02.2024. As

per the Registry, the appeal was e-filed on 08.02.2024. The claim of the

Learned Counsel for the Appellant that the appeal was filed on

30.01.2024 is not borne out from the records and is not correct.

10. According to the provisions of Section 421 of the Companies Act,

2013, the limitation for filing of appeal is 45 days which can be extended

by a further period not exceeding 45 days, if the Tribunal is satisfied that

the appellant was prevented by sufficient cause from filing the appeal

within time. The relevant provisions of Section 421 of the Act, are

reproduced below for ready reference:

"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:

Company Appeal (AT) No. 62 of 2024 5

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."

(Emphasis supplied)

11. Even if the contentions of the appellant are accepted that the impugned

order was received by him on 02.11.2023, we find that there is delay beyond

condonable period in filing the present appeal. If the period from 02.11.2023

to 08.02.2024 is counted, it comes to delay of 54 days, beyond the statutory

limitation of 45 days.

12. As we have seen the provisions of Section 421 empower this Tribunal to

condone the maximum delay of 45 days in filing the appeal, beyond the period

of 45 days initially allowed. We also find that no sufficient cause has been

given by the appellant in its IA for condonation of delay. Even otherwise, the

period of delay is 54 days, which is beyond the powers of condonation of this

Tribunal. Hence, IA No. 1324 of 2024 deserves to be dismissed and is hereby

dismissed. In consequence of dismissal of application for condonation of delay,

Company Appeal (AT) No. 62 of 2024 6

the Company Appeal No. 62 of 2024 is also rejected. All pending IAs are closed.

No order as to costs.

[Justice Yogesh Khanna] Member (Judicial)

[Mr. Ajai Das Mehrotra] Member (Technical)

R.N./Manu

Company Appeal (AT) No. 62 of 2024