AI Structured Summary
Not yet generated for this judgment
Judgment
13.05.2025: This appeal has been filed by Mr. Vikas Chowdhary, Director of Blackberry Projects Private Limited against the order dated 07.06.2023 in CP No. 173/KB/2021 (Impugned Order) passed by Ld. NCLT, Kolkata wherein petition filed by the Registrar of Companies, (RoC), West Bengal, Ministry of Corporate Affairs under Section 271 read with Section 272 of the Companies Act, 2013 for initiation of winding up proceedings against M/s Blackberry Projects Private Limited (Respondent No. 1) was admitted.
Before the Ld. NCLT, the RoC, West Bengal had filed CP No. 173/KB/2021 to initiate winding up proceedings under Section 271 and 272 of the Companies Act, 2013 against M/s Blackberry Projects Private Limited (Respondent No. 1).
It was submitted that Ministry of Corporate Affairs had ordered inquiry and examination of books of accounts of the Respondent No. 1 company as the said company was found by the Income Tax Department to be involved in providing entries or was beneficiary thereof. The RoC, West Bengal submitted a report dated 03.10.2018 containing findings and recorded various violations of the provisions of the Companies Act. The Regional Director (ER), Kolkata on the basis of the said report, duly informed the Secretary to Government of India, Ministry of Corporate Affairs of various violations of terms of the provisions of the Companies Act, 2013 by the Respondent No. 1 company, with recommendation for authorising the ROC to file petition before the Tribunal under Section 272 (1) (d) of the Companies Act, 2013 for winding up of the company in terms of the provisions of Section 271 (e) of the Companies Act, 2013.
During the proceedings before the Ld. NCLT, the Appellant and the Respondent No. 1 company did not attend the proceedings. Vide order dated 27.10.2022, the Ld. NCLT directed the petitioner to cause publication of an advertisement of the petition under rule 7 of the Companies (Winding Up) Rules, 2020. In compliance of said order, the RoC filed an affidavit of service dated 29.12.2022 confirming publication of notice in two newspapers, one in English and one in Bengali on 01.12.2022.
Despite such publication of notice, no one came forward to oppose the petition before the Ld. NCLT. Thereafter, the petition was admitted by the Ld. NCLT and official liquidator attached with the High Court of Calcutta was appointed as the ‘company liquidator’ vide order dated 07.06.2023.
Though the said order of Ld. NCLT was passed on 07.06.2023, the present company appeal viz. Company Appeal (AT) No. 62 of 2024 has been e-filed on 08.02.2024 and the hard copy was presented on 13.02.2024. However, in its oral arguments, the Learned Counsel for the Appellant stated that the appeal has been filed on 30.01.2024. In the application for condonation of delay (IA No. 1324 of 2024), the Appellant has submitted as under in para 5 and 6 of the said application and has requested for condonation of delay of 201 days in filing the captioned appeal:
“5.Further the Impugned Order dated 07.06.2023 by the passed by Ld. National Company Law Tribunal, Kolkata Bench, Bench-II was only communicated or was brought in the knowledge of the Appellant only on 02.11.2023 when the Office of Official Liquidator had come to take physical possession of the Register office of Respondent No.1 Company.
6.That the Appellant is a resident of Kolkata and since the knowledge of the impugned order on 2.11.2023, the Appellant is trying all measure to arrange lawyers in New Delhi for filing of the Appeal before the Hon'ble NCLAT and that the delay is non deliberate and the Appellant was pursuing the matter for representation before the New Delhi.”
The Learned Counsel for the Appellant submitted that since the order came to the knowledge of the Appellant only on 02.11.2023, the limitation may be counted from this date.
Heard.
We see that the appellant at two places in para 5 of the IA No. 1324 of 2024 and in list of dates at page 6 and 7 of the appeal paper book has admitted that the copy of the impugned order was communicated to him by the official liquidator on 02.11.2023. If we count the limitation from the date of the order, more than 200 days have elapsed. Even accepting the best case of the appellant that he had come to know of the impugned order on 02.11.2023, we find that the appeal has been e-filed on 08.02.2024, which is beyond the period of 90 days. We note that in the list of dates, the date of appeal is given as 05.02.2024. The date given in the memo of parties at page 2 of the appeal paper book is 02.02.2024. As per the Registry, the appeal was e-filed on 08.02.2024. The claim of the Learned Counsel for the Appellant that the appeal was filed on 30.01.2024 is not borne out from the records and is not correct.
According to the provisions of Section 421 of the Companies Act, 2013, the limitation for filing of appeal is 45 days which can be extended by a further period not exceeding 45 days, if the Tribunal is satisfied that the appellant was prevented by sufficient cause from filing the appeal within time. The relevant provisions of Section 421 of the Act, are reproduced below for ready reference:
“421.APPEAL FROM ORDERS OF TRIBUNAL- (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal.
(2)No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties.
(3)Every appeal under sub-section (1) shall be filed within a period of forty-five 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 forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period.
(4)On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5)The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal.”
(Emphasis supplied)
Even if the contentions of the appellant are accepted that the impugned order was received by him on 02.11.2023, we find that there is delay beyond condonable period in filing the present appeal. If the period from 02.11.2023 to 08.02.2024 is counted, it comes to delay of 54 days, beyond the statutory limitation of 45 days.
As we have seen the provisions of Section 421 empower this Tribunal to condone the maximum delay of 45 days in filing the appeal, beyond the period of 45 days initially allowed. We also find that no sufficient cause has been given by the appellant in its IA for condonation of delay. Even otherwise, the period of delay is 54 days, which is beyond the powers of condonation of this Tribunal. Hence, IA No. 1324 of 2024 deserves to be dismissed and is hereby dismissed. In consequence of dismissal of application for condonation of delay, the Company Appeal No. 62 of 2024 is also rejected. All pending IAs are closed. No order as to costs.