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Judgment
O R D E R
Per : Justice Rakesh Kumar Jain: (Oral)
This appeal is filed by the ‘Informant’ against the order dated 16.06.2022 passed by the ‘Competition Commission of India’ (for short ‘CCI’) under Section 26(2) of the Competition Act, 2002 (hereinafter referred as to ‘The Act’) by which the CCI has not found any prima facie case for reference to the Director General for enquiry.
The appeal has been filed along with an application bearing IA No. 4343 of 2022 under Section 53B of the Act for condonation of delay of 40 days. The reason assigned in the application is in para 2 which read as under:
“2.The subsequent to passing the impugned order the Appellant had requested the R5 for availing the buy-back option for the Machine and had requested to provide a quote for the buy-back of the Machine. For which the R5 had asked for Rs. 59,000/-for providing the quote after inspection by a technician. Which the Appellant had no other option but to pay as it has no other buyer. After the inspection OP Group had given a quote of merely Rs. 2,00,000/- for the machine which was purchased for Rs. 1.68 Crores and Cores and as on 31.03.2022 still has a written down value of ~Rs.57.50 Lakhs in the books of the Appellant.”
The Application is contested by Respondent No.5 by filing reply in which averments have been made in para 3 to 4 which read as under:
“3.The grounds taken by the Appellant seeking condonation are based on erroneous facts. The discussions regarding the buy-back were initiated by the Appellant on 05.07.2022, almost 2 weeks after receipt of the order. During the said discussions, the Answering respondent made it clear to the clear to the Appellant that it needs to inspect the machine before quoting the price for buy back of the machine in question. The Appellant allowed the Answering Respondent to inspect the machine on 01.08.2022, thereby further delaying the discussions for boy back for further period of 23 days. Thereafter, the Answering Respondent communicated its buy-back offer to the Appellant vide email dated 08.08.2022 after assessing the best possible boy-back after depending upon the condition of the machine, which was not acceptable to the Appellant.
4.Therefore evidently, the discussion between the Appellant and the Answering Respondent was unnecessarily dragged on by the Appellant itself and was finally conduced on 08.08.2022, well before the limitation period for filing the appeal ended (i.e., on or around 19.08.2022). The Appellant/ Applicant was still well within the period of statutory limitation to file the instant appeal but for the reasons best known to them chose to wait till 28.09.2022 to file the instant appeal, without any reasonable justification, after a delay of about 40 days. This reckless disregard for the ample limitation of 60 days provided, demonstrates that the present appeal is an unjustified afterthought by the Appellant.”
Counsel for the Appellant/ Applicant has submitted that it is a meritorious case which may not be dismissed on the ground of delay whereas Counsel for Respondent No.5 has submitted that merit of the case can be looked into once the Appellant crossed the hurdle of delay which has been caused by the Appellant itself.
We have heard counsel for the parties and perused the material available on record.
Section 53(B) of the Act is pertaining to Appeal to the Appellate Tribunal. Section 53(B) is relevant for this case and the same is reproduced as under:
“53B Appeal to Appellate Tribunal. —
(1)The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal.
(2)Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.
(3)On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.
(4)The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal.
(5)The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.”
According to the aforesaid provision, the Appeal in terms of Section 53B (1) has to be filed within a period 60 days. In the present case, the order was passed on 16.06.2022. The Appeal could have been filed by 16/17.08.2022. However, proviso to Section 53 B (2) provides that the Appellate Tribunal can entertain the appeal after expiry of the period of 60 days if it is satisfied that there is sufficient cause for not filing it within time. The reason given by the Applicant for not filing the appeal within time is that their negotiations were going on between the parties about buy-back of the machine. It is submitted that since the matter could not be settled amicably, therefore, the appeal had to be filed and in this process, delay of 40 days has occurred.
On the other hand, as per the Counsel for the Respondent, the first email was sent by the Appellant on 05.07.2022 after almost 2 weeks of the receipt of the order and the last one was sent on 08.08.2022 and thereafter, no further email was received from the Appellant and as such according to them the negotiations were over. It is further submitted that till the last email was received on 08.08.2022, the Appellant still had 9 days for the purpose of filing the appeal as the limitation was expiring on 17.08.2022 but it took another 40 days in not filing the appeal which shows that the delay is caused due to the casualness of the Appellant and is not bonafide.
In view of the facts and circumstances of the present case, we are of the considered opinion that the reason given by Respondent No.5 is more logical than the reason given by the Appellant for the purpose of seeking the condonation of delay as it does not aspire any confidence that the Appellant remained busy in the negotiations with the Respondent for the purpose of exercising the option of Buy-back. The very fact that the Appellant served the last email on 08.08.2022 and did not make any effort thereafter shows that the cause for filing the appeal at least had accrued to the Appellant on 08.08.2022 itself and at that time there were 9 days left for the purpose of filing the appeal within the prescribed time before this Tribunal. However, the Appellant took 40 days after the expiry of the limitation. It shows that the Appellant totally casual.
In view of the aforesaid facts and circumstances of the case, we do not find any reason to condone the delay as there is hardly any ground which is sufficient for the purpose of condonation of delay. Accordingly, the present application is dismissed and as a consequence thereof, the appeal is also dismissed.