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TMI Blog2021 (7) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... Per ; Shreesha Merla , Member ( T ) ] 1. Aggrieved by the Orders dated 05.11.2019 and 09.01.2020 passed by the NCLT (National Company Law Tribunal, Guwahati Bench, Guwahati) in C.P. (CAA)/07/GB/2019 in CA (CAA)/01/GB/2019, the Appellants preferred this Appeal under Section 421 of the Companies Act, 2013 (hereinafter referred to as the 'Act'). 2. The Tribunal has sanctioned the scheme of Amalgamation of M/s. Complete Medical Care & Research Institute Private Limited (the first Respondent) and M/s. Nemcare Hospitals Private Limited (the second Respondent) vide an Order dated 05.11.2019. Subsequently, the Tribunal had rectified certain typographical errors that have crept in the Order and pronounced the rectified Order on 09.01.2020. The first and second Appellants are Directors and Shareholders of the second Respondent, 'Transferee Company' and the 3rd & 4th Appellants are also Shareholders of the 'Transferee Company'. 3. The first Respondent (hereinafter referred to as the 'Transferor Company') and the second Respondent (hereinafter referred to as the 'Transferee Company') are promoted by the same promoters, Dr. Hitesh Baruah, Dr. Mihir Kumar Baruah, Mr. Ranjan Kumar Deka, Mr. Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e context of the previous Order dated 23.03.2020 passed by the Hon'ble Supreme Court and not subsequent to the Orders dated 18.03.2021 and 27.04.2021 would now holds the field for all purposes; the Hon'ble Supreme Court in its subsequent Orders dated 18.03.2021 and 27.04.2021 has specifically used the expression 'outer limits within which the Court or Tribunal can condone the delay', the use of the aforesaid categorical expression by the Hon'ble Supreme Court would mean that the outer limit of 45 days under the proviso Section 421(3) also stood extended with effect from 15.03.2020 and this extension is continuing in view of the Order dated 27.04.2021 passed by the Hon'ble Apex Court. 6. In support of his argument, Learned Sr. Counsel placed reliance on the decision of the Hon'ble Supreme Court in their Orders dated 23.03.2020, 08.03.2021 and 27.04.2021 which read as hereunder:- "a) In SUO MOTU WRIT PETITION (CIVIL) No(s). 3/2020 Order dated 23.03.2020 filed on 30.04.2021:- The Hon'ble Court directed to the effect that "it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 03.01.2018 and 02.01.2018. Even though the position for Amalgamation before NCLT was filed by the Respondent on 20.02.2019, the Valuation Report dated 07.02.2019 was not annexed and was only filed after the direction of the NCLT on 08.03.2019. There is no Board Resolution appointing M/s. Amlan Bhadra & Associates which is not a registered valuer, as envisaged in Section 247 and moreover no particulars have been provided in the purported report as to how the share entitlement ratio was arrived at, thereby disregarding the methodology in calculating the valuation of each share of both the Companies, which is contrary to law. 8. Submissions on behalf of Learned Counsel appearing on behalf of the Respondents: Learned Counsel appearing on behalf of the Respondents vehemently contended that the Appeal was barred by Limitation as the Impugned Order was passed on 05.11.2019 and rectified on 09.01.2020 and the prescribed period of Limitation is 45 days from the date of passing of the Order which expired on 24.02.2020 and the Appellants slept over the matter and are now resorting to false statements regarding date of knowledge of the Impugned Orders. That the first Appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." 10. It is an admitted fact that in the first Impugned Order dated 05.11.2019 there were some errors which were rectified by the NCLT on 09.01.2020. It is the case of the Learned Counsel for the Appellants that though there were five Board Meetings held on 10.01.2020, 06.05.2020, 15.05.2020, 20.05.2020 and on 04.06.2020 the Impugned Orders were never discussed and it was only in the Board Meeting of the 'Transferee Company' held on 27.06.2020 that the Impugned Orders were first brought to the notice of the Appellants. 11. At this juncture, we find it pertinent to reproduce the relevant portion of the Minutes of the 5th Meeting of the Board of Directors dated 27.06.2020 to ascertain whether the Impugned Orders were in the knowledge of the Board of Directors prior to 27.06.2020:- (Emphasis Supplied) 12. From the aforenoted Minutes, it is evident that the Appellant with respect to the correction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court was only "the period of limitation" and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them".... "23. Therefore, the expression "prescribed period" appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be "prescribed period. 24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited', this Court dealt with the meaning of the words "prescribed period" in paragraphs 13 and 14 as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted" (i.e. 'Transferee Company') instead of "M/s. Nemcare Hospitals Pvt. Ltd." at page 9 in sub-para 2. (2) The word "that" is typed twice in the beginning of sub-para 4 and in the third line, the word "creditor" is wrongly typed instead of "each" after the words "113 (One Hundred Thirteen equity shares of Rs. 10/-". 17. Rule 50 of the National Company Law Tribunal Rules, 2016 also mandates the Registry of the NLCT to send a certified copy of the final Order to the parties concerned free of cost. However, Rule 50 also enables the Registry of the NCLT to make available the certified copies with cost as per schedule of fees in all other cases (meaning thereby 'to persons who are not parties'). Rule 50 reads as follows:- "50. Registry to send certified copy. - The Registry shall send a certified copy of final order passed to the parties concerned free of cost and the certified copies may be made available with cost as per the schedule of fees, in all other cases." In the instant case, the Appellants are silent about the receipt of free copy. Be that as it may, they chose to apply for a certified copy only on 08.08.2020 and received it on 12.08.2020 and filed this Appeal on 06.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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