1 wp387.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 387 OF 2009 WITH CIVIL APPLICATION NO.6664 OF 2010 M/s Vishva Electronics (I) Ltd. Petitioners ------ Union of India and ors. Respondents ------- Shri A.P. Bhandari, Advocate, for the Petitioners. Shri Alok Sharma, Asstt.Solicitor General for Resp. Nos. 1 and 8 Shri S.V.Kurundkar, Addl.G.P. for Respondents No.2. Shri S.V.Adwant Advocate, for Respondent Nos. 3 and 5. Shri K.B. Chaudhari, Advocate, for Respondent No. 7 -------- Coram: Smt. Nishita Mhatre & M.,T.Joshi, JJ. Date : 15th June, 2011. P. C. 01. The present petition impugns the order dated 21.10.2008, passed by the Appellate Authority for Industrial and Financial Reconstruction, in Appeal No. 163 of 2008. By this order, the appellate authority has refused to condone the delay of 55 days in preferring the appeal. 02. The petitioners are a company registered under the Companies Act. A reference was made to the Board for Industrial and Financial Reconstruction ("BIFR", for short), on 3.10.2006. The reference was dismissed by the BIFR on 17.3.2008. According to the petitioners, they applied for a certified copy of the order, on 25.4.2008, which was received by them on 7.5.2008. The appeal was preferred by the petitioners before the appellate authority, on 2.7.2008, under Section 25 of the Sick Industrial Companies (Special Provisions) Act, 1985 ("SICA" for short). 2 wp387.09 03. The appellate authority dismissed the application for condoning the delay in preferring the appeal. It was of the view that the ground submitted by the petitioners for the delay, was untenable. The petitioners' contention that it was because of the indisposition of their Managing Director that they could not approach the appellate authority within the period stipulated under Section 25 of the SICA, was not accepted by the appellate authority. 04. Mr. Bhandari, the learned counsel appearing for the petitioners submits that a bare perusal of the record would indicate that the petitioners' application was well within the period stipulated in the proviso to Section 25 of the SICA. He points out that though the record of the BIFR indicates that the order was despatched to the petitioners on 1.4.2008, it was not received by the petitioners. He submits that there is no indication in the record of the BIFR that the order was, in fact, received by the petitioners. According to Mr. Bhandari, the certified copy of the order was received by the petitioners only on 7.5.2008 and, therefore, the limitation would run from that date, and not from 1.4.2008. He relies on the judgement of the Division Bench of this Court in the case of Iccon Oil & Specialities Ltd. vs. Union of India, 2010 (2) Bom.C.R. 62. 05. Mr. Sharma, the learned Assistant Solicitor General, appearing for Respondent Nos. 1 and 8, submits that the impugned order cannot be faulted, as the appellate authority has found that the reasons furnished by the petitioners for the delay in approaching the appellate authority, were unbelievable. He points out that the illness of the Managing Director 3 wp387.09 cannot preclude the petitioners, which are a registered company functioning through its various officers, from approaching the appellate authority within the stipulated period. According to him, the registered company does not run only on the steam of its Managing Director, but because of the efforts of several people working together. 06. We have considered the judgement in the case of Iccon Oil and Specialities Ltd., wherein the Division Bench of this Court has, while interpreting Section 25 of the SICA, held that the limitation will start to run from the date the copy of the order is received by the party. We are in respectful agreement with these observations made by the Division Bench. In the present case, therefore, the limitation would run from 7.5.2008 when the certified copy of the order was received by the petitioners. There is no material on record to indicate that the order, which was despatched on 1.4.2008, was, actually received by the petitioners. A presumption cannot be drawn that the order was received by the petitioners when there is no material on record, to indicate that the order was sent by Registered Post A.D. or under certificate of posting. In any case, the presumption which Mr. Sharma wants us to draw, and which, in fact, has been drawn by the appellate authority, is a rebuttable presumption. 07. As regards the reason for the delay, it is true that a registered company does not function only through its Managing Director and several important decisions are to be taken by the Board of Directors. However, the day-to-day functioning of a company is discharged through its Managing Director and other officers of the company. The Managing Director plays a crucial role in the decision making process of the company. 4 wp387.09 Being at the helm of the company, the opinion of the Managing Director would obviously be required to be considered by the Board of Directors before deciding whether an appeal should be filed. Although the fact that the Managing Director was ill, has been accepted by the appellate authority, it was of the view that the company does not function only through its Managing Director. We have already stated the reasons why the presence of the Managing Director would be necessary, while taking an important decision as to whether the order passed by the BIFR should be challenged. 08. In these circumstances, in our view, the appellate authority ought to have condoned the delay. In any event, the delay is not beyond the period of 60 days as stipulated in the proviso to Section 25 of the SICA. 09. Accordingly, the impugned order is set aside. The delay in approaching the appellate authority is condoned. The appellate authority will decide the appeal, on merits. 10. The Writ Petition is allowed. Consequently, civil application does not survive and is dismissed. (M. T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) pnd/wp387.09