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TMI Blog2006 (11) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... communication was given by the company, appeal should have been filed within four months from the date of application and the delay is 285 days and not 45 days. It was contended that communication dated 31-5-2003 was in terms of the order of the CLB in another case and that date is irrelevant. Therefore, appellant filed an application to hold that appeal filed by first respondent is not maintainable as appeal under section 111 of the Act ought to have been filed within four months the date of application to the company and CLB has no power to condone the delay. The Company Law Board by the impugned order held that application/objection filed by the company is not maintainable and sufficient grounds are made out by the first respondent to condone the delay in filing the application and, therefore, delay was condoned. It was also held by the Company Law Board that even if appeal under section 111(2) is barred by limitation, this application can be entertained under section 111(4) for which no limitation is provided. The CLB followed the decision in Citi Bank NA v. Power Grid Corpn. of India Ltd. [1995] 83 Comp. Cas. 454 1 (CLB-Delhi) in these matters as remedies under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Tribunal for rectification of the register. (5) The Tribunal, while dealing with an appeal preferred under sub-section (2) or an application made under sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order ( a )direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days of the receipt of the order; or ( b )direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved. (6) The Tribunal, while acting under sub-section (5), may, at its discretion, make ( a )such interim orders, including any orders as to injunction or stay, as it may deem fit and just; ( b )such orders as to costs as it thinks fit; and ( c )incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares. (7) On any application under this secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Authority or clothe such authority with any power to be exercised under the Limitation Act. . . ." (p. 4595) Thereafter, it was held as follows : "13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provisions of law under which the competent authority itself has been created. . . ." (p. 4595) Therefore, the competent authority constituted under that Act was mere statutory authority constituted and considering its powers, it was held that it cannot be treated as a Court . In Sakuru v. Tanaji AIR 1985 SC 1279 which was followed in the above case, the Supreme Court held that section 5 of the Limitation Act is not applicable to the competent authority (Collector) under the Telangana Area Tenancy and Agricultural Lands Act befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, sections 4 to 24 of the Limitation Act, 1963, and so, the period of 60 days limitation prescribed in section 8A has to be computed by applying sections 4 to 24 (inclusive) of the Limitation Act, 1963." (p. 84) 7. The Hon ble Apex Court considered this point in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker AIR 1995 SC 2272. In that case, the Court was considering whether section 5 of the Limitation Act will apply in filing appeal before the appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act, 1965. Kerala Buildings (Lease and Rent Control) Act is a special Act or a local law and it prescribes for appeal for a period of limitation which is different under the Schedule to the Limitation Act as Limitation Act does not contemplate any period for filing appeal before the appellate authority under section 18. It was held in such circumstances th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 29(2) on its own force will get attracted to appeals filed before appellate authority under section 18 of the Rent Act. When section 29(2) applies to appeals under section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of section 5 of the Limitation Act to appeals filed before appellate authority under section 18 of the Act. Consequently, all the legal requirements for applicability of section 5 of the Limitation Act to such appeals in the light of section 29(2) of Limitation Act can be said to have been satisfied." The Hon ble Apex Court also held as follows : ". . .There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Then the question is what are the powers given to the CLB under the Companies Act? Section 10 of the Act deals with constitution of Company Law Board. Section 10E (1), (1A) and (4B) to (4D) reads as follows : "10E. Constitution of Board of Company Law Administration. (1) As soon as may be after the commencement of the Companies (Amendment) Act, 1988, the Central Government shall, by the notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration. (1A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law. ****** (4B) The Board may, by order in writing, form one or more Benches from among its members and authorise each such Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 111, or to apply to the Court for rectification of the share register under section 155. We think that these two remedies should now be assimilated and provision be made (at one place) for a person aggrieved (including any person aggrieved by a refusal of the Board of Directors to register a transfer or transmission of shares) to apply to the Company Law Board as proposed to be constituted for rectification of the share register on any of the grounds mentioned in sub-clause ( a ) or ( b ) or sub-section (1) of the present section 155. Our proposals are ****** Accordingly, we would recommend as follows : Sections 111 and 155 should be assimilated into a single statutory provision. 15. Section 155, as it read before 31-5-1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the company s register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under section 111 the CLB must, and does, act judicially. Its orders are appealable. The CLB, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a Court, particularly for the purposes of section 9A of the Special Act ." [Emphasis supplied] We are of the view that same principle is applicable in Limitation Act also. Orders of the CLB under section 111 is further appealable to the High Court and it is curative in nature. Not acting as persona designata , the Company Law Board functions as a Court while dealing with an application under section 111. Therefore, time-limit prescribed by section 111(3) for application filed under section 111(2) can be extended for sufficient reasons under section 5 read with section 29(2) of the Limitation Act. It is true that if a maximum time-limit that can be extended is provided under the special or local law, further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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