2009 (7) TMI 773 - HC - Companies Law

Whether this court in exercise of its powers under second proviso to section 10F of the Companies Act can condone the delay of 43 days in filing the appeal by excluding the period during which the application was pursuing remedy in the Delhi High Court as contemplated under section 5 read with section 14 of the Limitation Act? Held that - The Company Law Board passed orders on 19-2-2009 and appeal presented in this court on 5-6-2009, is clearly barred under section 10F of the Companies Act. The applicant has not shown any sufficient cause for condonation of delay. He allowed wide ranging structural changes in the management, operations and administration of Satyam and filed the instant appeal, instead of approaching the Company Law Board, for redressal. Therefore, the company appeal miscellaneous petition is dismissed

Summary

Issues Involved:
1. Condonation of delay in filing the appeal under Section 10F of the Companies Act, 1956.
2. Applicability of the Limitation Act to appeals under Section 10F of the Companies Act.
3. Exclusion of time under Section 14 of the Limitation Act when pursuing remedy in a court without jurisdiction.

Detailed Analysis:

Condonation of Delay:
The applicant filed a miscellaneous application under Section 5 of the Limitation Act, 1963, seeking to condone a 43-day delay in filing an appeal under Section 10F of the Companies Act, 1956. The delay was attributed to the applicant pursuing the remedy in the Delhi High Court, which dismissed the appeal for lack of jurisdiction. The affidavit accompanying the application did not provide specific reasons for the delay, merely enumerating subsequent events.

Applicability of the Limitation Act:
The court examined whether the provisions of the Limitation Act applied to appeals under Section 10F of the Companies Act. Section 10F allows appeals to the High Court within 60 days from the date of communication of the Company Law Board's decision, with a proviso that the High Court can extend this period by a further 60 days if sufficient cause is shown. The court noted that the maximum allowable time for filing an appeal is 120 days. The appeal in question was filed beyond this period, making it barred by limitation.

Exclusion of Time Under Section 14 of the Limitation Act:
The applicant argued that the period during which the matter was pending in the Delhi High Court should be excluded under Section 14 of the Limitation Act. The court referred to several precedents, including *Manguram v. Municipal Corporation of Delhi* and *Union of India v. Popular Construction Co.*, which established that when a special limitation period is prescribed, the general provisions of the Limitation Act, including Section 5, are excluded unless explicitly stated otherwise. The court cited *Pawan Goel v. KMG Milk Food Ltd.*, where it was held that the Companies Act, 1956, being a special law, excludes the application of Section 5 of the Limitation Act for condoning delays beyond the prescribed period.

Conclusion:
The court concluded that the appeal was filed beyond the permissible period of 120 days as stipulated under Section 10F of the Companies Act. The applicant did not show sufficient cause for the delay, and the structural changes in the management of Satyam had already taken place. Consequently, the application for condonation of delay was dismissed, and the appeal was also dismissed without any order as to costs.