Smt. Hema Dhapola & Anr vs Nirvan Hospitals Private Ltd. & Ors

Smt. Hema Dhapola & Anr. Appellants

Versus

Nirvan Hospitals Private Ltd. & Ors. Respondents

Present: For Appellants: Shri Saurabh Kalia and Shri Harshit Aggarwal, Advocates

For Respondents Nos. 1 to 3: Shri Amrendra Nath Tripathi and Shri Syed Muzammil Hasan, Advocates

ORDER

20.07.20 17 This appeal has been preferred by the appellants

against order dated 19. 12.20 16 passed by the National Company Law

Tribunal (hereinafter referred to as 'Tribunal'), Allahabad Bench,

Allah abad in Company Petition No. 1 15(ND) of 2012 along with a

petition for condonation of delay. Originally, one petition for

condonation of delay was filed by appellants on 13th April, 2017 which

was not found proper, therefore, second time, another petition for

condonation of delay has been filed on the ground that the appellants

have brought on record all relevant facts.

2. We have heard the learned counsel for the appellants and

learned counsel for Respondents Nos. 1 to 3.

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3. From the record, we find that the impugned order was passed

on 19th December, 2016 and the copy of the order was received by

appellants on 17th January, 2017. Thereafter, a defective appeal was

filed on 13th April, 2017, but the same was returned and later on the

appeal was filed afresh on 11th May, 2017. Thus, we find that the

appeal has been preferred after about four months of the receipt of the

impugned order.

4. Section 421 of the Companies Act, 2013 relates to an appeal

against the order of the Tribunal. As per sub-Section (3) of Section

421, every appeal under sub-section (1) is required to 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, provided that the Appellate Tribunal

is empowered to entertain an appeal after the expiry of the period of

forty-five days but within a further period not exceeding forty-five days

as quoted below:

"421. Appealfrom 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:

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."

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5. In this case, as the copy of the order of the Tribunal was made

available to the appellants on 17th January, 2017, the appeal was

required to have been filed within forty five days i.e. by 2nd March,

2017. However, defective appeal was initially filed on 13th April, 2017

which was taken back and fresh filing was made after about one

month on 11th May, 2017. Thus, there being delay of more than

further forty five days, this Appellate Tribunal has no jurisdiction to

condone the delay.

6. For the reasons aforesaid, we reject the petition for condonation

of delay. In the result, the appeal is dismissed being barred by

limitation. However, there shall be no order as to costs.

Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh ] Member (Technical)

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