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TMI Blog2024 (10) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties, parties are not entitled to condonation of delay in question as a matter of right. Even if sufficient cause has been shown Court has to enquire as to whether it should exercise its discretion to condone the delay. The Appellant has not even shown any sufficient cause that he was prevented to file an appeal rather Appellant is clearly negligent in filing the appeal since he was well aware of the order even prior to 22.02.2024 and has filed two applications - Appellant has already pleaded that extension of time be granted without prejudice to the rights of the Appellant to file appeal. Thus, Appellant has already pleaded that he has right to file an appeal without prejudice to the extension of time. It is not satisfied that Appellant was prevented by sufficient cause from filing the Appeal within the extended period of 45 days. The Delay Condonation Application deserves to be dismissed and is hereby dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Deepak Khosla , Advocate For the Respondents : Mr. Prateek Kumar , Advocate for Delhi Gymkhana Club Limited Mr. Raunak Dhillon , Ms. Isha Malik , Mr. Jeezan Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and two weeks time for filing reply was given. Reply has been filed by Ministry of Corporate Affairs to the Delay Condonation Application to which rejoinder has also been filed. 3. We have heard Shri Deepak Khosla, Counsel for the Appellant/ Applicant, Shri Raunak Dhillon, Counsel for the Union of India and Shri Prateek Kumar, Counsel for the Delhi Gymkhana Club Limited. 4. Shri Deepak Khosla, Counsel for the Appellant submits that the order dated 15.12.2023 is order passed in per incuriam and nullity. It is submitted that when the order impugned is per incuriam and nullity, consideration of delay application is inconsequential and this Tribunal may declare the order dated 15.12.2023 as nullity which shall obviate any consideration of Delay Condonation Application. It is further submitted that in any event of the matter delay in filing the Appeal is only 68 days i.e. within condonable period of 45 days after expiry of 45 days as provided by Section 421(3) of the Companies Act, 2013. It is submitted that the order dated 15.12.2023 was served on the Appellant by e-mail dated 22.02.2024, hence, the Appeal is filed with delay of 68 days which is within the condonable period. It is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been maliciously prosecuting the various application and has conducted himself. Appellant has initiated multifarious litigation before various fora which has been observed by the NCLT in order dated 15.12.2023 and on account of frivolous and wrongful filing of cases, a cost of Rs.50,000/- was also imposed on the Appellant by the NCLT. It is submitted that no case has been made out to condone the delay in filing the appeal. It is further submitted that the Appellant being well aware of the order at least from 08.01.2024 when he filed CA No.22 of 2024, time shall start running from 08.01.2024 and 45 days period for filing the appeal and further condonable period of 45 days came to end on 07.04.2024, hence, the appeal has been filed beyond condonable period and the application deserves to be rejected. 6. Counsel appearing for the Respondent No.1- Delhi Gymkhana Club also adopted the submissions advanced by Counsel for the Union of India and submits that no sufficient cause has been shown by the Appellant for condonation of delay and Appeal deserves to be dismissed. 7. We have considered the submissions of the Counsel for the parties and perused the record. 8. We need to first notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, and accompanied by such fees, as may be prescribed: Provided that the Appellate 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. 11. The period of limitation prescribed for filing appeal is 45 days but as per proviso to Section 421(3), the Appellate 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 . Thus, the Appellate Tribunal has to be satisfied that the Appellant was prevented by sufficient cause from filing the appeal within that period. We, thus, need to examine the pleadings and materials on record to find out as to whether there is any reason to record satisfaction that the Appellant was prevented by sufficient cause from filing the appeal within that period. As noted above, the Appellant has filed CA No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal after 14.03.2024 when CA No.49 of 2024 was dismissed by the Tribunal. Admittedly, the present Appeal i.e. Company Appeal (AT) No.242 of 2024 has been filed on 01.05.2024. As noticed above, the Appellate Tribunal can entertain an appeal if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period obviously denote to further 45 days period mentioned in proviso to Section 421(3). Thus, Appellant in an application for seeking condonation of delay on the strength of proviso to Section 421(3) has to plead and prove that the Appellant was prevented by sufficient cause from filing the appeal within further period of 45 days. Even if we proceed on the case set up by the Appellant that he was served copy of the order on 22.02.2024, 45 days period shall come to an end by 07.04.2024 and hence, for the further period there has to be sufficient cause for condoning the delay invoking the proviso to Section 421(3) on Appellant giving any sufficient cause that Appellant was prevented by sufficient cause from filing the appeal within that period. What to say about any sufficient cause, no cause has been shown in the application filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued 'without jurisdiction', and in breach of audi alterum partum, either of the aforesaid two grounds rendering the direction contained in para 69 to be a nullity in law, void ab initio as if non est. *** *** *** 11. Therefore, it is all the more surprising for the applicant to have read the order delivered by this Hon'ble Tribunal the very next day (i.e. 15- 12-2023), whereby this Hon'ble Tribunal, not having taken judicial notice of the judgement of Hon'ble NCLAT delivered in the case of Suchi Paper Mills Ltd., has dismissed CA No. 440 of 2022, holding that the administrative orders passed by Ld. (acting) President in March/April 2020 lawfully constituted an appropriate exercise of jurisdiction represented by a conscious carve-out of class of cases which met with the statutory requirements contained in the proviso to Section 419 (3) of the Companies Act (2013). *** *** *** 13. To pre-empt any argument that the challenge raised by the appellant in the aforementioned case of Suchi Paper Mills Ltd succeeded on merits, the applicant reproduces verbatim below the contents of para 23 of the aforementioned judgement of Hon'ble NCLAT, because it makes it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellant due to which the Appellant was prevented from filing appeal till 01.05.2024. We, thus, are of the view that on mere reading of the application and the cause given, there are no cause or reason given by the Appellant as to what prevented the Appellant from filing the appeal within further period of 45 days which was available under proviso to Section 421(3). Thus, we are of the view that there are no cause or reason given in the application praying for condonation of delay for this Appellate Tribunal to satisfy that appellant was prevented by sufficient cause from filing the appeal within that period. 15. In this context, we may refer to the judgment of this Tribunal in Laly Joseph vs. Indo Asian News Channel Pvt. Ltd.- 2023 SCC OnLine NCLAT 1683 wherein this Tribunal while considering the provision of Section 421(3) of the Companies Act, 2013 has laid down following in paragraphs 7 and 8, which are as follows : - 7. Section 421(1) provides that any person who is aggrieved by an Order of the Tribunal has a right to prefer an Appeal before the Appellate Tribunal. Section 421(2) debars the filing of an Appeal against an Order which has been passed on the consent of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it in this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act. 19. As noted above, present is a case where what to say of sufficient cause, no cause has been shown by the Appellant for not filing the appeal after 14.03.2024, when CA No. 49 of 2024 came to be dismissed, till filing of the appeal on 01.05.2024. Thus, we are satisfied that the Appellant has failed to prove that he was prevented from filing the appeal within the period of 45 days as permissible under proviso to Section 421(3). 20. We also need to notice one more submission of the Counsel for the Appellant that the order passed on 15.12.2023 was per incuriam and nullity, hence, the question of delay is inconsequential and this Court may declare the order as nullity in this Appeal. He has relied on the judgment of this Tribunal in Suchi Paper Mills Ltd vs. Ashish Gupta, Resolution Professional- Company Appeal (AT) (Ins.) No.830 of 2020 decided on 16.10.2023. It is submitted that in the said judgment this Tribunal held that Single Member Bench has no jurisdiction to pass an order. It is submitted that in view of the above judgment, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits. 21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted. 24. The Hon ble Supreme Court in State of Jharkhand and Ors. vs. Ashok Kumar Chokhani and Ors.- (2009) 2 SCC 667 had also held that while deciding an application for condonation of delay in filing the appeal, the High Court could not go into the merits of the same. Paragraph 3 of the judgment is as follows:- 3. It is true that an observation has been made by the High Court in the impugned order that the subject - matter in the appeal also did not suffer from any infirmity but it is well settled that while deciding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e resume of the aforesaid facts and circumstances, it is clear to us that law does not permit that the case is heard by one entity and the order is pronounced by another who has not heard the case at all. In such circumstances, the question posed hereinabove is hereby answered in favour of the Appellant and it is held that the order dated 10.01.2018, having been passed by a bench in which one of the member was not a member of the bench who had heard the matter at the time when it was reserved, is patently illegal and void ab-initio. 28. In the above background, this Tribunal held that the Appeal was maintainable not only against the order dated 25.02.2022 but earlier order dated 10.01.2018. In the above background, the Appellate Tribunal held that the Appeal was well within time even against the order dated 10.01.2018 since the said order was never pronounced by the Bench competent to do so. In paragraph 21 of the judgment, following was held:- 21. He has put emphasis on the issue of pronouncement of the order to contend that the certified copy which is required for the purpose of filing the appeal in order to count the limitation can only be obtained after the pronouncement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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