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Judgment
O R D E R
25.04.2023: Heard Mr. Abhishek Anand, Ld. Counsel for the Appellant. The present appeal has been preferred under Section 421 of the Companies Act, 2013 against an order dated 23.12.2022, passed by the National Company Law Tribunal, Mumbai Bench- Court I (herein after referred to as ‘NCLT’) in CP /283(MB)2022.
The order impugned is quoted herein below:
“This Company Petition bearing No. CP/283(MB) of 2022 filed by the Applicant, namely, Harikiran Kaur Sawhney under Section 241 & 242 read with Section 59 of the Companies Act, 2013. Ld. Counsel, for the Applicant submits that Respondent Company is holding EOGM on 02.01.2023 at 12.00 p.m.. Counsel for the Applicant further invited attention of this Bench to Page 232 (Exhibit P-17) referred to the notice of the EOGM, in the said EOGM the Agenda of Item No. 1 is "removal of Ms. Harikiran Kaur Sawhney as Director of the Company". Ld. Counsel for the Applicant submits that the petitioner has diagnosed Cancer and is passing through in the high distress, taking advantage of the illness and bad health, respondent Company deliberately want to remove her from the post of Directorship. Ld. Counsel, for the Applicant further brought our attention that there is a matrimonial discord between Husband and wife, consequently respondent Company want to remove her from the post of Directorship. Ld. Counsel for the Respondent is present and seeks time to place on record affidavit in reply. Time is granted. Ld. Counsel for the respondent is directed to place on record affidavit in Reply well before the adjourned date. Accordingly, the Company may hold the EOGM, however, the agenda Item No.1 i.e. "removal of Ms. Harikiran Kaur Sawhney as Director of the Company" will not be taken up in the EOGM. In the meantime, parties are directed to maintain the status quo. List this matter on Board on 24.01.2023 for further consideration”.
Ld. Counsel for the Appellant, tried to persuade the court that Ld. NCLT has committed serious error in entertaining the application filed by the Respondent No.1 under Section 241-242 of the Companies Act, 2013. It was submitted by Ld. Counsel for the Appellant that the Respondent No. 1 was having no shareholding in the company and as such under Section 244 of the Companies Act, 2013 she was not entitled to maintain the application. However, the Ld. NCLT proceeded with a petition and passed the impugned order directing for maintaining status quo.
Ld. Counsel for the Appellant has drawn our attention to the statement made in paragraph 1 at running page 45 i.e. part of the petition/application filed before the NCLT to persuade the court that the Respondent was Applicant before the NCLT and stated that she was having shareholding of approximately 40% equity shares in Imperial School & Study Centre Pvt. Ltd. whereas in the present case BITC Loan Services Pvt. Ltd. was the company who was arrayed as Respondent No. 1 before the NCLT. Accordingly, it has been argued that the Ld. NCLT has committed jurisdictional error in entertaining the petition and as such the NCLT was not having any authority to entertain the application and pass order for maintaining status quo.
The present appeal has been filed belatedly and as such a petition for condonation of delay has been filed. In filing the appeal 33 days delay has occurred. For condonation of delay a separate application vide I.A. No. 1627 of 2023 has been filed. Of course, in paragraph 4, days of delay has been mentioned but due to over writing it is difficult to infer as to what was the delay. However, Mr. Anand, Ld. Counsel for the Appellant submits that 33 days delay has occurred and as such a prayer is being made for condoning the delay.
Before proceeding, it would be appropriate to reproduce the application filed for condonation of delay as follows:
“1.The Applicant herein is the Appellant in the captioned Appeal. The reliefs sought in the Application are as follows:
a. Allow the present Application;
b. condone the delay of _ days in filing the present Appeal; and
c. Pass any such order as this Hon'ble Tribunal may deem fit and proper and in the interests of justice.
2.The accompanying Appeal is filed under Section 421 of the Companies Act, 2013 against the Order dated December 23, 2022, passed by the Hon'ble National Company Law Tribunal, Mumbai Bench in Company Petition (MB) No. 283 of 2022 ("Impugned Order") titled "Harkiran Kaur Sawhney v/s. BITC Loan Services Pvt. Ltd.” The Applicant herein pleads that the contents of the accompanying Appeal be read as part and parcel with the contents of the present Application, which are not being repeated for the sake of brevity.
3.That the Applicant most humbly submits that the date on which the Impugned Order dated December 23, 2022, was uploaded on the website of the NCLT has not been made known to the Applicant. However, the Applicant has made a bona fide computation of the limitation period by taking the date of uploading of the Impugned Order as December 23, 2022, itself. Whilst the Appellant was duly abiding by the directions of the Hon'ble NCLT, the Respondent herein, initiated contempt proceedings under of the Impugned Order, against the Applicants before the Hon'ble NCLT on frivolous grounds.
4.The Appellant is filing the instant Application seeking condonation of delay of _ days in filing the accompanying Appeal. The Applicant submits that the Respondent maliciously and fraudulently initiated contempt proceedings against the Applicants by adopting a perverse interpretation of the Impugned Order dated December 23, 2022. Without prejudice to its rights in the accompanying Appeal, the Appellant reserves his right to take appropriate action against Respondent No. 1 before the Hon'ble NCLT.
5.It is further stated that by the time the said contempt proceedings were initiated, considerable time had elapsed since the passing of the Impugned Order dated December 23, 2022. Hence, it is prayed that the delay caused in filing the present Appeal be condoned in the interest of justice, which is neither deliberate nor intentional.
6.After the Impugned Order was passed, Respondent No. 1 frivolously and surreptitiously filed two (2) Petitions under Section 241 and 242 of the Companies Act, 2013, bearing C.P. 284 (MB)/2022 and C.P. 287 (MB)/2022 before the Hon'ble NCLT, without any locus, seeking similar relief against group companies of the Appellant herein, only with an intent of causing wrongful loss to the Appellants. Towards the aforesaid Petitions, in addressing appropriate Replies to the three (3) Petitions, a further delay was caused in filing the accompanying Appeal.
7.The present Application has been made bona fide, in the interests of justice and no prejudice will be caused to Respondent No. 1 if the present Application is allowed. As prayed accordingly”.
On examination of the aforesaid statement, it is evident that no plausible reason has been assigned for delay in filing the appeal. Under provision contained in Section 421 an appeal is to be filed within 45 days, however if further after expiry of 45 days appeal is not filed, then thereafter this tribunal is not competent to entertain the appeal. However, if during extended within 45 days, a party in a position to satisfy the court regarding the reasonable ground for delay, this court may entertain such petition. Considering the statement made in the condonation petition, we are not satisfied that any plausible explanation has been given for delay in filing the appeal. Normally, in condonation of delay application, it is required on the part of the party to explain day to day delay, however, in the present application no such explanation has been given and as such we don’t find any ground to condone the delay. The appeal stands dismissed on the ground of limitation itself.