Regional Director, Northern Region vs Gentle Realtors Pvt. Ltd. & Anr.

(Hybrid Mode)

This appeal is against an impugned order 11.09.2024 passed by Ld. NCLT, Chandigarh in C.P. No. 67/CHD/HRY/2024 whereby an application filed under Section 233 (5) of the companies Act, 2013 read with Rule 25 (6) of the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 filed by the Central Government through Regional Director, Northern Region, in the matter of scheme of merger/amalgamation of M/s Gentle Realtors Pvt. Ltd. and M3M India Pvt. Ltd., was dismissed.

We have perused the impugned order most specifically Paras 6 to 10 as under:

At the outset, we would like to examine whether the present application is filed within 60 days of limitation period. As we have already noted in the present case, the Respondent companies had approached the Applicant’s office with electronic and phYsical copies of the CAA-1 1 form on 29.06.2023 and 30.06.2023 respectively, marking the initiation of the procedure of Fast Track Merger under Section 233(5). The applicant had filed an application before this Tribunal on 09.08.2024 which is well within the limitation period prescribed under Section 233(5) i.e. 60 days.

The Sub-section (5) of Section 233 of the Companies Act, 2013 privies as under:

if the Central Government after receiving the objections or suggestions or for any reason is of the opinion that such a scheme is not in public interest or in the interest of the creditors, it may file an application before the Tribunal within a period of 60 days of the receipt of the scheme under sub-section (2)

stating its objections and requesting that the Tribunal may consider the scheme under section 232”.

Thus, it is necessary for the Central Government first to form an opinion that the scheme is not in public interest or in the interest of the creditors and that opinion may be formed either based on the objections or suggestions received on the Scheme, or otherwise for any reason and only after forming such opinion, the application can be filed by Central Government under section 233(5) of the Companies Act 2013

In this context, Ld. Counsel for petitioner has rightly placed reliance upon the judgement passed by the Hon’ble High Court of Bombay in the matter i.e. Asset Auto India Pvt. Ltd & Ors Vs. The Union of India & Ors - WP No. 556 of 2019 (supra). The relevant para of the judgment (supra) dated 01.08.2024 reads thus:

13 ….. Sub-section (5) of Section 233 provides that if the Central Government, i.e., respondent no.2-Regional Director, after Receiving the 0bjections/suggestions or for any other reason is of the opinion that such a scheme is not in the public interest or interest of creditors, it may file an application before NCLT within a period of 60 days of the receipt of the scheme under sub-section (2) stating its objections and requesting that the Tribunal may consider the scheme under Section 232. Admittedly, respondent no.2 has received the scheme under sub-section (2) on 28" September, 2018. The sixty days period would have expired on 27" November, 2018. Before even filing the application to the Tribunal under sub-section (5), respondent no.2 not having received any objections/ suggestions from the Registrar or the Official Liquidator, should have formed an opinion that the scheme was not in public interest or interest of the creditors.”

(Emphasis Supplied)

In the present case, the RD has filed the application without forming the opinion that the scheme is not in the public interest or the interest of creditors. Further the prayers made by the Applicant are beyond scope of section 233(5) of the companies act, 2013. Hence, the petition is not maintainable under sub section (5) of section 233 of the Companies Act, 2013.

We have perused sub section 5 of section 233 of the Companies Act & it says if the Central Government has an objection the scheme is not in public interest or in the interest of the Creditors, it may file objections within the period of 60 days. Admittedly, in the present case the Respondent Companies have informed the appellants office on 29.06.2023 as well as on 30.06.2023 but whereas the present application was filed only 09.08.2024 i.e, much beyond the limitation period so prescribed under Section 233 (5) of the Companies Act 2013 and hence the objections were rightly dismissed.

Though, Learned Counsel for the Appellant referred to Para 11 of the impugned order to say though the Company Petition was dismissed by the Learned NCLT but with directions to the Appellant to decide the matter on merits. We see there was no reason to pass such directions when objections were being dismissed.

Even otherwise this appeal is filed after a delay of 196 days of passing of the impugned order. Now, in Regional Director Vs. Mayfair Hotels and Resorts Ltd and Another 2025 SCC Online NCLAT 2041, we have already held any appeal filed beyond an extended period of 45 days is beyond limitation, as was held in its paras 3 to 6 as under:

Admittedly, there is a delay of more than nine months in filing the instant appeal after the order was passed on December 20, 2024 which does not only exceed the forty-five days of limitation but also exceeds the peremptory limit of further forty-five days under Section 421 of Companies Act, 2013. In Bengal Chemists & Druggists Association V Kalyan Chowdhury (2018) 3 SCC 41, the Hon’ble Supreme Court held the period of limitation under Section 421(3) requires a strict compliance, without which second time-limit of 45 days would be rendered otiose. The relevant portion of the judgement is extracted hereunder: -

Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time limit of 45 days, which, as has been pointed out by us above, is peremptory in nature.

The Appellant has heavily relied on Section 15(2) of the Limitation Act, 1963 to contend the time spent in obtaining the sanction from the Ministry of Corporate Affairs should be excluded in computing the limitation for filing the instant Appeal. Such reliance on Section 15(2) of the Limitation Act, 1963 appears to be misconceived in view of Section 433 of the Companies Act, 2013 which specifically provide the provisions of the Limitation Act, 1963 shall apply to the Companies Act, 2013 “as far as may be”, as noted by the Hon’ble Supreme Court in Bengal Chemists (Supra). Accordingly, Section 15(2) (supra) evidently cannot come to the aid of the appellant in a situation where there is a special provisions contained in Section 421(3) proviso, which mandates compliance with the prescribed timeline in preferring an appeal.

Admittedly, in Bengal Chemists (supra), the only grace period available is of further 45 days per Section 421(3) (supra) and within this period the sufficient causes of delay can be deliberated upon, and if we look into the reason of nine month delay, then as held in Bengal Chemists (supra), Section 421 would be rendered otiose.

In the circumstances we see no reason to condone the delay, hence IA No.5950/2025 is dismissed. Consequently, Company Appeal (AT) No.243/2025 is also dismissed.

Further, in Bengal Chemists and Druggists Association Vs. Kalyan Chowdhury, (2018) 208 Comp Cas 358 the court held:

Learned Counsel for the appellant referred to section 433 of the Companies Act, 2013, as quoted below, whereby the Limitation Act, 1963, has been made applicable as far as practicable and submitted that as per section 29(3) of the Limitation Act, 1963, delay can be condoned. The said provision read as follow:

However, the aforesaid submission made by learned Counsel for the appellant cannot be accepted, as provisions of the Limtation Act, 1963, can be applied, only if it can be applicable. There being period of Tribunal to condone the delay, the Appellate Tribunal has no jurisdiction to condone the delay beyond the said period.

For the reasons aforesaid, the application for condonation of delay is rejected. In the result, the appeal is dismissed being barred by limitation. However, in the facts and circumstances of the case, there shall be no order as to costs.

Thus, in view of the above, the application for condonation of 196 days delay is dismissed. The Appeal also stands dismissed. Pending Applications No. 3417, 3649, 3650 of 2025 & 1392 of 2026 are all disposed of.