Rohan Packaging Products Ltd vs Lakhmichand Gidwani

[Arising out of order dated 14.08.2017 passed by National Company Law Tribunal, Mumbai Bench in Interlocutory Application No.27/NCLT/MUM/2017 in Transfer Company Petition No.19 of 2015]

IN THE MATTER OF COMPANY APPEAL OF:-

1. Rohan Packaging Products Ltd. Office No.6, 3rd Floor, Dealing Chambers, Deccan Gymkhana, J.M. Raod, Pune - 411 004

2. Rajendra Bhate 529, Shivaji Nagar, Sangali - 416 416

3. Mahendra Bhate 31B, Sudha Kalash, J. Mehta Raod, Walkeshwar, Mumbai - 400 006

4. Siddhartha Bhate 529, Shivaji Nagar, Sangali - 416 416 ...Applicants Versus

1. Lakhmichand Gidwani "Jyoti" 341/A, Revenue Colony, Near Market Yard, Sangli - 416 416

2. Mahesh Gidwani "Jyoti" 341/A, Revenue Colony, Near Market Yard, Sangli - 416 416

3. Anil Hirani 49, Ashirwad Bungalow, Ruikar Colony, Kolhapur 2

4. Shyamlal Khatri Ram aur Shyam Dresses, Main Road, Athani, Karnataka

5. Jagdish Ghumara Chartered Accountant, B/14, Jessica Natakwala Lane, S.V. Lane, Borivali (W), Mumbai - 400 092

6. [Harsh Finance and Trading Pvt. Ltd. [Deleted] B-1, Manaji Blocks, Jawji Marg, Nana Chowk, Mumbai - 400 007]

7. [Ministry of Corporate Affairs, [Deleted] 'A' wing, Shastri Bhavan, Rajendra Prasad Road, New Delhi - 110 001]

8. Alpesh Modi Flat No.1603, 16th Floor, Rashmi Heights, Opp. MW Desai Hospital Dayabhai Patel Road, Malad East Mumbai - 400 097

9. Mr. Rajesh Nariya B/204, Radha Krishna Apt. S.V. Road, Dahisar (East) Mumbai - 400 068

10. [Mr. Ganesh Patil [Deleted] Near Laxmi Mandir Chowk Kupwad - 416 416]

11. Mr. Yashwant Kagale Near Tangsal Maruti Mandir Brahmanpuri, Miraj - 416 415

...Respondents

Present: Shri Kamal Ahuja and Shri Sameer Srivastava, Advocates for the Appellants

Shri P.K. Mittal, Advocate for Respondents

IA No.214 of 2018 in Company Appeal (AT) No.59 of 2018 3

ORAL JUDGEMENT 16.07.2018

A.I.S. Cheema, J. :

1. This application has been filed by the Appellants who have filed the

appeal against Impugned Order dated 14.08.2017 whereby the learned

NCLT, Mumbai ("NCLT" in brief) dismissed the Interlocutory Application

No.27 of 2017 in Transfer Company Petition 19 of 2015 challenging the

maintainability of the said Transfer Company Petition 19 of 2015 filed by

the present Respondents 1 to 4. According to the Appellants when the

order was passed by NCLT, it was not displayed on the website for

considerable period. The certified copy was applied for and collected on

10th October, 2018. It was, however, noticed that in the Order, the

Interlocutory Application No.27 of 2017 was inadvertently marked as MA

109 of 2017 in place of IA 27 of 2017. The NCLT issued Corrigendum Order

on 1st January, 2018 rectifying the inadvertent error. According to the

Appellants if the period is calculated from the Corrigendum Order, the

Appeal is within limitation. However, in case period of limitation begins

from receipt of certified copy on 10th October, 2017, there is delay of 97

days in filing the appeal. The Appellants have prayed condonation of delay

of 97 days.

2. The original Petitioners have opposed the delay condonation

application vide Reply (Diary No.4697). The Respondents point out that

after the Impugned Order was passed on 14.08.2017, the Company

Petition had come up before NCLT on 21st September, 2017 as can be seen IA No.214 of 2018 in Company Appeal (AT) No.59 of 2018 4

from copy of the Cause List which has been filed. The learned counsel for

the Respondents submitted that the Appellants were aware of the

Impugned Order passed but delayed taking steps and/or filing of this

appeal and thus the delay does not deserve to be condoned. According to

the counsel, keeping in view Section 421 of the Companies Act, 2013, the

delay of more than 45 days, beyond the permissible 45 days for filing the

appeal cannot be condoned.

3. The counsel for Appellants submits that the Cause List referred to

by the learned counsel for Respondents is not relevant. He submits that

they got the certified copy only on 10th October, 2017 and that is material.

4. The learned counsel for Appellants is submitting that the limitation

should be counted from the date of Corrigendum Order dated 1st January,

2018 and not from the date of the original Order dated 14th August, 2017.

Having heard counsel for both sides, we find that the Order which is

impugned before us is dated 14th August, 2017 and not the order dated 1st

January, 2018. The Order dated 1st January, 2018 (Page - 89 A) is

Corrigendum Order which was passed on the basis of the Appellants

moving Praecipe dated 27th December, 2017 before NCLT seeking

rectification with reference to the MA number. As what is impugned before

us is the order dated 14th August, 2017, we have to look into the question

of limitation from that date. Appellants are aggrieved by Order dated

14.08.2017 and Appeal filed is against that Order. We do not agree with

IA No.214 of 2018 in Company Appeal (AT) No.59 of 2018 5

the learned counsel for the Appellants that date of 1st January, 2018 would

be relevant for the purpose of calculating delay.

5. Sub-Sections (1) to (3) of Section 421 of the Companies Act, 2013 are

relevant for this matter and read as under:

"(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."

6. From reading the above provision, it is clear that a person aggrieved

by an Order may file appeal within the period prescribed of 45 days from

the date on which copy of the Order of the Tribunal is made available to IA No.214 of 2018 in Company Appeal (AT) No.59 of 2018 6

the person aggrieved. The Appellate Tribunal can entertain appeal after

expiry of the said period of 45 days but within further period not exceeding

45 days, if the Tribunal is satisfied that the Appellants were prevented by

sufficient cause from filing the appeal within that period. Counsel for

Respondent has relied on Judgement in the matter of "Bengal Chemists

& Druggists Assn. vs. Kalyan Chowdhury" - of Hon'ble The Supreme

Court of India (Civil Appeal No. 684 of 2018 decided on 02.02.2018)

reported as MANU/SC/0099/2018 to state that after such 45 days, this

Tribunal cannot condone further period.

7. When we look at the present matter, the Impugned Order is dated

14th August, 2017. We intend to ignore the argument of the learned

counsel for the Respondents that after 14th August, 2017, the matter in

NCLT had been posted on 21st September, 2017 as Order sheet of presence

is not shown. Even if we take the date of 10th October, 2017 when Certified

Copy was issued, as the basis for calculating the period of limitation, still

we find there are obstacles for the Appellants to cross.

8. Page - 89 H of the appeal shows that certified true copy issued free

of cost was issued on 10.10.2017. The Praecipe filed for correction before

NCLT is dated 27th December, 2017 as can be seen from Corrigendum

Order. The period between 10.10.2017 to 27.12.2017 would be about 77

days. First the Appellants consumed 77 days to move the NCLT for

rectification. The NCLT passed orders on 01.01.2018. Even if we ignore

that period from 27.12.2017 to 01.01.2018 and give benefit to the

IA No.214 of 2018 in Company Appeal (AT) No.59 of 2018 7

Appellants, it does not help Appellants. The Corrigendum Order was

passed on 1st January, 2018 (Page - 89 A) and the Appellants were given

certified true copy of such Corrigendum Order on 2nd January, 2018. The

appeal has been presented only on 31st January, 2018 and thus another

about 28 days were consumed. Adding the earlier 77 days consumed and

another 28 days consumed, the appeal is filed after 100 days. As such, the

appeal is clearly time barred. This I.A. itself also seeks condoning of delay

of 97 days. Apart from this, for reasons discussed, the appeal is time

barred.

9. We reject the I.A. to condone delay and dismiss the appeal tendered

as Time Barred.

No Order as to costs.

[Justice A.I.S. Cheema] Member (Judicial)

[Balvinder Singh] Member (Technical)

/rs/nn

IA No.214 of 2018 in Company Appeal (AT) No.59 of 2018