Reportable: in The Supreme Court of India Civil Appellate Jurisdiction Civil Appeal Nos.3007 3008 of 2020
Reportable: in The Supreme Court of India Civil Appellate Jurisdiction Civil Appeal Nos.3007 3008 of 2020
Reportable: in The Supreme Court of India Civil Appellate Jurisdiction Civil Appeal Nos.3007 3008 of 2020
IN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.30073008 OF 2020
SAGUFA AHMED & ORS. …Appellants
Versus
UPPER ASSAM PLYWOOD PRODUCTS PVT.
LTD. & ORS. …Respondents
J U D G M E N T
V. RAMASUBRAMANIAN, J.
1. Challenging an order passed by the National Company Law
Appellate Tribunal (hereinafter referred to as ‘NCLAT’) dismissing
an application for condonation of delay as well as an appeal as
appeals.
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2020.09.18
16:51:41 IST 1
Reason:
WWW.LIVELAW.IN
2. We have heard Mr. Gunjan Singh, learned counsel for the
appellants and Mr. Sajan Poovayya, learned Senior Counsel who
accepts notice on behalf of the first respondent.
3. The appellants herein together claim to hold 24.89% of the
appellants moved an application before the Guwahati Bench of
‘NCLT’) for the winding up of the company. The said petition was
dismissed by the NCLT by an order dated 25.10.2019.
4. According to the appellants, they applied for a certified copy
(though the appellants have claimed in the Memo of Appeal that
application filed as Annexure P1 bears the date 22.11.2019).
2
WWW.LIVELAW.IN
5. According to the appellants, the certified copy of the order
counsel on 19.12.2019, pursuant to the copy application made
on 21.11.2019.
6. Though the appellants admittedly received the certified copy
appeal before NCLAT on 20.07.2020. The appeal was filed along
with an application for condonation of delay.
dismissed the application for condonation of delay on the ground
that the Tribunal has no power to condone the delay beyond a
period of 45 days. Consequently the appeal was also dismissed.
It is against the dismissal of both the application for condonation
of delay as well as the appeal, that the appellants have come up
with the present appeals.
3
WWW.LIVELAW.IN
erred in computing the period of limitation from the date of the
order of the NCLT, contrary to Section 421(3) of the Companies
Act, 2013, and (ii) that the Appellate Tribunal failed to take note
extending the period of limitation for filing any proceeding with
effect from 15.03.2020 until further orders.
9. Let us now test the correctness of the contentions one by one.
Contention1
NCLT to send a copy of every order passed under Section 420(1)
to all the parties concerned. Section 420(3) reads as follows:
“420. Orders of Tribunal
(1) xxxx
4
WWW.LIVELAW.IN
(2) xxxx
11. Rule 50 of the National Company Law Tribunal Rules, 2016
also mandates the Registry of the NCLT to send a certified copy
of the final order to the parties concerned free of cost. However,
Rule 50 also enables the Registry of the NCLT to make available
the certified copies with cost as per schedule of fees in all other
cases (meaning thereby ‘to persons who are not parties’). Rule 50
reads as follows :
Appellate Tribunal as against an order of NCLT. SubSection (3)
5
WWW.LIVELAW.IN
upon the Appellate Tribunal to condone the delay. SubSection
(3) of Section 421 together with the proviso thereunder reads as
follows:
“421. Appeal from orders of Tribunal
(1) xxxx
(2) xxxx
(3) Every appeal under subsection (1) shall be filed within a
period of fortyfive 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 fortyfive days from
the date aforesaid, but within a further period not exceeding
fortyfive days, if it is satisfied that the appellant was prevented
by sufficient cause from filing the appeal within that period.”
13. Therefore, it is true, as contended by the appellants, that
the period of limitation of 45 days prescribed in Section 421(3)
would start running only from the date on which a copy of the
order of the Tribunal is made available to the person aggrieved.
6
WWW.LIVELAW.IN
It is also true that under Section 420(3) of the Act read with Rule
50, the appellants were entitled to be furnished with a certified
copy of the order free of cost.
application, but to await the receipt of a free copy of the order in
perfectly justified in falling back on Section 421(3), for fixing the
appellants in this case, chose to apply for a certified copy after 27
they now fall back upon Section 421(3).
15. Despite the above factual position, we do not want to hold
against the appellants, the fact that they waited from 25.10.2019
(the date of the order of NCLT) upto 21.11.2019, to make a copy
7
WWW.LIVELAW.IN
running.
16. From 19.12.2019, the date on which the counsel for the
appellants received the copy of the order, the appellants had a
02.02.2020.
Tribunal was empowered to condone the delay upto a period of
period of 45 days. This period of 45 days started running from
18.03.2020. The appellants did not file the appeal on or before
18.03.2020, but filed it on 20.07.2020. It is relevant to note that
the lock down was imposed only on 24.03.2020 and there was no
8
WWW.LIVELAW.IN
18.03.2020. To overcome this difficulty, the appellants rely upon
the order of this Court dated 23.03.2020. This takes us to the
second contention of the appellants.
Contention2
dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020.
It reads as follows:
9
WWW.LIVELAW.IN
w.e.f. 15th March 2020 till further order/s to be passed by
this Court in present proceedings.
19. But we do not think that the appellants can take refuge
under the above order. What was extended by the above order
of this Court was only “the period of limitation” and not the
discretion conferred by the statute. The above order passed by
prevented due to the pandemic and the lockdown, from initiating
proceedings within the period of limitation prescribed by general
or special law. It is needless to point out that the law of limitation
10
WWW.LIVELAW.IN
finds its root in two latin maxims, one of which is Vigilantibus
Non Dormientibus Jura Subveniunt which means that the law will
assist only those who are vigilant about their rights and not
those who sleep over them.
follows:
11
WWW.LIVELAW.IN
21. The principle forming the basis of Section 10(1) of the
General Clauses Act, also finds a place in Section 4 of the
Limitation Act, 1963 which reads as follows:
22. The words “prescribed period” appear in several Sections of
the Limitation Act, 1963. Though these words “prescribed period”
limitation. We may see a few examples:
(i) Section 3(1) makes every proceeding filed after the prescribed
period, liable to be dismissed, subject however to the provisions
in Sections 4 to 24.
12
WWW.LIVELAW.IN
(ii) Section 5 enables the admission of any appeal or application
after the prescribed period.
(iii) Section 6 uses the expression prescribed period in relation
to proceedings to be initiated by persons under legal disability.
Section 4 cannot be construed to mean anything other than the
period of limitation. Any period beyond the prescribed period,
during which the Court or Tribunal has the discretion to allow a
“prescribed period”.
paragraphs 13 and 14 as follows:
1 (2012) 2 SCC 624
13
WWW.LIVELAW.IN
14. Section 2(j) of the 1963 Act defines”
Section 2(j) of the 1963 Act when read in the context of Section
34(3) of the 1996 Act, it becomes amply clear that the
prescribed period for making an application for setting aside
arbitral award is three months. The period of 30 days
mentioned in proviso that follows subsection (3) of Section 34
of the 1996 Act is not the 'period of limitation' and, therefore,
not 'prescribed period' for the purposes of making the
application for setting aside the arbitral award. The period of
30 days beyond three months which the court may extend on
sufficient cause being shown under the proviso appended to
subsection (3) of Section 34 of the 1996 Act being not the
'period of limitation' or, in other words, 'prescribed period', in
our opinion, Section 4 of the 1963 Act is not, at all, attracted to
the facts of the present case.”
order passed by this Court on 23.03.2020, for enlarging, even the
14
WWW.LIVELAW.IN
contention is thus untenable. Hence the appeals are liable to be
dismissed. Accordingly, they are dismissed.
(i)
…………....................CJI.
(S. A. Bobde)
....…………....................J.
(A. S. Bopanna)
…..………......................J.
(V. Ramasubramanian)
SEPTEMBER 18, 2020
NEW DELHI
15