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Supreme Court of India
Sagufa Ahmed vs Upper Assam Plywood Products Pvt. … on 18 September, 2020Author: V. Ramasubramanian
Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian
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
JUDGMENT
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
time barred, the appellants have come up with the above
appeals.
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2020.09.18
16:51:41 IST 1
Reason:
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
shares of a company by name Upper Assam Plywood Products
Private Limited, which is the first respondent herein. The
appellants moved an application before the Guwahati Bench of
the National Company Law Tribunal (hereinafter referred to as
‘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
of the order of the NCLT dated 25.10.2019, on 21.11.2019
(though the appellants have claimed in the Memo of Appeal that
they applied for a certified copy on 21.11.2019, the copy
application filed as Annexure P1 bears the date 22.11.2019).
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5. According to the appellants, the certified copy of the order
dated 25.10.2019 passed by the NCLT was received by their
counsel on 19.12.2019, pursuant to the copy application made
on 21.11.2019.
6. Though the appellants admittedly received the certified copy
of the order on 19.12.2019, they chose to file the statutory
appeal before NCLAT on 20.07.2020. The appeal was filed along
with an application for condonation of delay.
7. By an order dated 04.08.2020, the Appellate Tribunal
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.
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8. The contentions raised by the learned counsel for the
appellants are twofold namely (i) that the Appellate Tribunal
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
of the lockdown as well as the order passed by this Court on
23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020,
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
10. Section 420(3) of the Companies Act, 2013 mandates the
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
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(2) xxxx
(3) The Tribunal shall send a copy of every order passed
under this section to all the parties concerned”.
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 :
“50. Registry to send certified copy. The Registry shall
send a certified copy of final order passed to the parties
concerned free of cost and the certified copies may be made
available with cost as per the schedule of fees, in all other
cases.”
12. Section 421(1) provides for a remedy of appeal to the
Appellate Tribunal as against an order of NCLT. SubSection (3)
of Section 421 prescribes the period of limitation for filing an
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appeal and the proviso thereunder confers a limited discretion
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.
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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.
14. Therefore if the appellants had chosen not to file a copy
application, but to await the receipt of a free copy of the order in
terms of Section 420(3) read with Rule 50, they would be
perfectly justified in falling back on Section 421(3), for fixing the
date from which limitation would start running. But the
appellants in this case, chose to apply for a certified copy after 27
days of the pronouncement of the order in their presence and
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
application. But atleast from 19.12.2019, the date on which a
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certified copy was admittedly received by the counsel for the
appellants, the period of limitation cannot be stopped from
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
period of 45 days to file an appeal. This period expired on
02.02.2020.
17. By virtue of the proviso to Section 421(3), the Appellate
Tribunal was empowered to condone the delay upto a period of
period of 45 days. This period of 45 days started running from
02.02.2020 and it expired even according to the appellants on
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
impediment for the appellants to file the appeal on or before
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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
18. To get over their failure to file an appeal on or before
18.03.2020, the appellants rely upon the order of this Court
dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020.
It reads as follows:
“This Court has taken Suo Motu cognizance of the
situation arising out of the challenge faced by the country
on account of Covid19 Virus and resultant difficulties that
may be faced by litigants across the country in filing their
petitions/applications/suits/appeals/all other
proceedings within the period of limitation prescribed
under the general law of limitation or under Special Laws
(both Central and/or State).
To obviate such difficulties and to ensure that
lawyers/litigants do not have to come physically to file
such proceedings in respective Courts/Tribunals across
the country including this Court, it is hereby ordered that a
period of limitation in all such proceedings, irrespective of
the limitation prescribed under the general law or Special
Laws whether condonable or not shall stand extended
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w.e.f. 15th March 2020 till further order/s to be passed by
this Court in present proceedings.
We are exercising this power under Article 142 read
with Article 141 of the Constitution of India and declare
that this order is a binding order within the meaning of
Article 141 on all Courts/Tribunals and authorities.
This order may be brought to the notice of all High
Courts for being communicated to all subordinate
Courts/Tribunals within their respective jurisdiction.
Issue notice to all the Registrars General of the High
Courts, returnable in four weeks.”
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
period upto which delay can be condoned in exercise of
discretion conferred by the statute. The above order passed by
this Court was intended to benefit vigilant litigants who were
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
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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.
20. It may be useful in this regard to make a reference to
Section 10 of the General Clauses Act, 1897 which reads as
follows:
“10. Computation of time (1) Where, by any 19 [Central
Act] or Regulation made after the commencement of this Act,
any act or proceeding is directed or allowed to be done or taken
in any Court or office on a certain day or within a prescribed
period, then, if the Court or office is closed on that day or the
last day of the prescribed period, the act or proceeding shall be
considered as done or taken in due time if it is done or taken on
the next day afterwards on which the Court or office is open:
Provided that nothing in this section shall apply to any act
or proceeding to which the Indian Limitation Act, 1877 (15 of
1877), applies.
(2) This section applies also to all [Central Acts] and,
Regulations made on or after the fourteenth day of January,
1887.”
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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:
“4. Expiry of prescribed period when court is closed.—
Where the prescribed period for any suit, appeal or application
expires on a day when the court is closed, the suit, appeal or
application may be instituted, preferred or made on the day
when the court reopens.
Explanation.— A court shall be deemed to be closed on any
day within the meaning of this section if during any part of its
normal working hours it remains closed on that day.”
22. The words “prescribed period” appear in several Sections of
the Limitation Act, 1963. Though these words “prescribed period”
are not defined in Section 2 of the Limitation Act, 1963, the
expression is used throughout, only to denote the period of
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.
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(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.
23. Therefore, the expression “prescribed period” appearing in
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
person to institute the proceedings, cannot be taken to be
“prescribed period”.
24. In Assam Urban Water Supply and Sewerage Board
Versus Subash Projects and Marketing Limited 1, this Court
dealt with the meaning of the words “prescribed period” in
paragraphs 13 and 14 as follows:
1 (2012) 2 SCC 624
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“13. The crucial words in Section 4 of the 1963 Act are
“prescribed period”. What is the meaning of these words?
14. Section 2(j) of the 1963 Act defines”
“2(j) ‘period of limitation’ which means the period of
limitation prescribed for any suit, appeal or application by the
Schedule, and ‘prescribed period’ means the period of limitation
computed in accordance with the provisions of this Act.
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.”
25. Therefore, the appellants cannot claim the benefit of the
order passed by this Court on 23.03.2020, for enlarging, even the
period up to which delay can be condoned. The second
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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
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