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TMI Blog2017 (5) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal, the appellant has challenged the order dated 5th January 2017 passed in T.P. No. 88/2016 in C.P. No. 22/2016 by National Company Law Tribunal, Bengaluru Bench whereby certain interim order has been passed. A petition for condonation of delay has been filed to condone delay of 54 days. As we find that as the Appellate has no jurisdiction to condone the delay for more than 45 days, we dismiss the appeal on the ground of delay." 2. Learned counsel for the applicant submits that the Appellate Tribunal has inherent powers to the review and recall the impugned order as the Registrar of the NCLAT, after 7 days' period of removal of defects has not recorded any order nor given any notice to the appellant. 3. It is contended that apart from procedural review there is inherent power of Appellate Tribunal to set aside erroneous order passed under wrong apprehension by it. 4. Reliance is placed on Hon'ble Supreme Court decision in Indian Oil Corporation Ltd. v. Union of India 1980 Supp (1) SCC 426 wherein the Hon'ble Apex Court held as follows:- "13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice the relevant facts and the provisions of law. 8. The appeal was preferred by applicant against Order dated 5th January 2017 passed by National Company Law Tribunal (hereinafter referred to as the Tribunal' for short), Bengaluru Bench in T.P. No. 88/2016 (Jitendra Virmani v. MRO-TEK Ltd.) whereby the Tribunal rejected the prayer for interim relief. Certified copy of the (impugned) order was served on the applicant on 7th January 2017. 9. Section 421 of the Companies Act 2013 relate to Appeal from orders of Tribunal'. Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal except the order passed with the consent of the parties. Sub-section (3) of Section 421 prescribe 45 days from the date of copy of the order of the Tribunal is made available to prefer the appeal. Under proviso thereto the Appellate Tribunal has been empowered to entertain an appeal after the expiry of the period of 45 days, but limited with the power as it can condone delay of another 45 days, if it is satisfied that appellant was prevented by sufficient cause from filing the appeal within that period, as quoted below: - "421. Appeal from orders of Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all such documents in the register after daily filing and assign a diary number which shall be entered below the date stamp and thereafter cause it to be sent for scrutiny. (2) If, on scrutiny, the appeal or document is found to be defective, such document shall, after notice to the party, be returned for compliance and if there is a failure to comply within seven days from the date of return, the same shall be placed before the Registrar who may pass appropriate orders. (3) The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance. (4) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the appeal or pleading or document." 12. As noticed, the appellant did not chose to remove the defects within 7 days though the defects were general in nature. After removal of defects and after more than one month the appeal was filed on 1st May 2017. 13. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have rejected to register the appeal, then also the appellant could not have got any relief till a fresh appeal is filed against the same very impugned order. 17. As per the provisions of the NCLAT Rules 2016 read with Section 422 of the Companies Act 2013, if defects are not removed within 7 days and the defects are removed after 7 days i.e. beyond the period prescribed under the rules, the appeal is treated to be a fresh appeal. Such procedure is followed so that the appellants may get advantage of 'court fee' prescribed under the NCLAT Rules and may use the same 'paper book' which are generally voluminous. If the Registrar General would have refused to register the appeal after 7 days, as per clause (4) of Rule 26, the appellant would have filed a fresh appeal with fresh court fee with separate sets of paper book, separate affidavit, separate vakalatnama which would be disadvantageous to the appellants. 18. As noticed, the re-filing/fresh filing of the appeal was made on 1st May 2017. 19. As per the provisions of the Act and Rules framed thereunder, the appellant having received the copy of the order on 7th January 2017 was required to file within 45 days i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result." 22. In the present case, curiously the applicant has not explained the delay and laches on his part. It has not explained that why the appeal was not filed within 45 days of receipt of the certified copy of the judgment i.e. by 21st February 2017. They have also not explained the delay for preferring the appeal for another 38 days i.e. till 31st March 2017 when it was filed. 23. Curiously, even when defects were pointed out by the registry on 31st March 2017, why they sat tight over the matter for 31 days in removing the defects. 24. Though it was open to the applicant to file a petition before Appellate Tribunal with prayer to ignore the minor defects, no such application was filed by appellant. The appeal was taken back on 3rd April 2017 and they re-filed on 1st May 2017 i.e. beyond the period of 90 days from the date of receipt of judgment passed by Tribunal, when Appellate Tribunal had no jurisdiction to entertain the appeal. 25. The aforesaid unexplained delay on the part of the applicant and laches on his part show that applicant does not deserve exercise of inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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