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TMI Blog2014 (3) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... hyarujina, learned counsel for the appellant, Jagdish Lal Gupta ("Jagdish Gupta"), claims that his client had a right to receive a copy of the impugned order under Regulation 29(4) of the Company Law Board Regulations, 1991 ("CLB Regulations"). He was not given a copy. He chanced upon it much later, in August 2012, and since this appeal was filed on 22nd November 2012, it is within the extended period of 60 days (beyond the initial period of 60 days). It is, he argues, therefore permissible for the Court to exercise discretion in Jagdish Gupta's favour, the more so since this is an appeal, a substantive right. Mr. R.I. Chagla, learned counsel for the contesting 7th respondent, Sanjay Gupta ("Sanjay Gupta"), disputes this with a degree of vehemence that borders on the disconcerting. It was not only in August 2012 that Jagdish Gupta learned of the impugned order, says Mr. Chagla. He knew of it in several months earlier, no later than April 2012, and very likely in January 2012: the appeal is, therefore, hopelessly out of time. 3. Given the facts, I propose to dismiss this Company Application. I have found that it is beyond doubt that Jagdish Gupta knew of the impugned order at least ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant and the Order dated 24th January 2012 was passed without hearing and without notice to the Appellant. (ii) Without prejudice to the said contention, the delay in filing the present Appeal may be condoned as the present Appeal is being filed within 120 days of the information and details about Company Application 35/2012 being obtained. It is submitted that computed from 15th August 2012, the present Appeal is being filed after 60 days of the said date but within 120 days i.e. Approx. 100 days from the date of knowledge i.e. delay of 40 days after the first 60 days. (iii) In the alternative, It is submitted that computed from 1st August 2012, the present Appeal is being filed after 60 days of the said date but within 120 days i.e. Approx. 115 days from the date of knowledge i.e. delay of 55 days after the first 60 days (iv) Further, without prejudice to the said contentions it is submitted that the present Appeal may be treated as Cross Objections - Cross Appeal vis-à-vis Company Appeal (Lod.) No.15 and 17 of 2012. (v) Further, without prejudice, it is submitted that if required, the present Appeal may also be treated as a petition under Article 227 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 2011. On that day, Jagdish Gupta filed further company applications. The Company Law Board, by its order of 23rd November 2011, declined to issue notice on these Company Applications and also declined to allow the applications for impleadment. 9. I am not, at this stage, considering the merits of the appeal. That can only be done if Mr. Andhyarujina succeeds and the delay - and it is admitted that there is a delay - is condoned. For, if it is not then the appeal itself cannot be filed or heard. 10. Mr. Andhyarujina's first submission is based on his reading of Regulation 29(4) of the CLB Regulations, extracted below: "29. Order of the Bench - (1) Every order of the Bench shall be in writing, and shall be signed by the member or members constituting the Bench which pronounces the order. (2) * * * (3) * * * (4) A copy of every interim order granting or refusing or modifying interim relief and final order passed on any petition or reference shall be communicated to the petitioner or the applicant and to the respondents and other parties concerned free of cost: Provided that in the case of an order under section 17 confirming change of registered office, two copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder copies but must apply for these and pay the necessary fees. He or she may also be required to give reasons why these order copies are sought. 13. As Jagdish Gupta was not a party to Sanjay Gupta's Company Application No.35 of 2012, he is not a person concerned within the meaning of Regulation 29(4). Mr. Andhyarujina's formulation seems to me to be utterly impracticable. It would require the Company Law Board or its registry to embark on an argosy in quest of every single person with some connection, however remote, to the matter at hand and provide him with free copies. This cannot have been the intention of Regulation 29(4). Jagdish Gupta was not concerned with Company Application No. 35 of 2012 at all. There was no attempt to vary, modify or recall the previous order declining his application for impleadment. It was an application by Sanjay Gupta to obtain certain clarifications on the basis that the Company Law Board had, while disposing of Jagdish Gupta's impleadment application, made observations that were beyond the scope of those impleadment actions. 14. The factual basis for the present Company Application for condonation of delay is in paragraph 8 of its affidavit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a petition under Article 227 of the Constitution of India due to "the peculiar circumstances of the matter". That cannot be done. There are no peculiar circumstances; certainly, none in favour of the appellant. The peculiar circumstances, such as they are, are against the appellant. 19. Mr. Andhyarujina also submits that the present appeal may be treated as a cross-objection in the appeal filed by the 7th respondent and others. He relies on a decision of the Supreme Court in Superintending Engineer and others V/s. B. Subba Reddy(1999) 4 SCC 423 to submit that since an appeal is a substantive right and a cross-objection is like an appeal, he is therefore entitled, ex debito justitiae, to an enlargement of time, or, alternatively to have his appeal treated as a cross-appeal or cross-objections. The decision in B. Subba Reddy arose in the context of the 1940 Arbitration Act. The observations made in paragraph 53 of that decision are in relation to the provisions of that Act and Order 41 Rule 22 of the Code of Civil Procedure, 1908. The words of limitation that we find in Section 10F are not to be found in Order 41. To very similar effect are the decisions in Bhagat Ram V/s. Raghba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under Section 10F has now been settled by a decision of a learned Single Judge of this court in Smt. Hetal Alpesh Muchhala V/s. Adityesh Educational Institute (P) Limited and others. (2009) 4 Comp LJ 577 (Bom.) The very question arose before that Court. Kathawala, J. in terms held that the right of appeal under Section 10F is restricted. It must relate only to questions of law. To ensure that there is a quick finality to the disputes, all decisions on facts by the Company Law Board are final and conclusive. It is not, therefore, possible to afford a liberal construction to the discretion vested under the proviso to Section 10F. To do so would be to render it meaningless and contrary to the plain intent of the statute. The Court's power in condonation of delay beyond sixty days itself is prescribed in mandatory language: "Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding 60 days." 23. The learned Single Judge held that on a correct reading of the Supreme Court decision in Union of India V/s. Popular Construction Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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