0402cao895.10.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLICATION (CAO) NO. 895 OF 2010 IN COMPANY APPEAL ST. NO. 12239/10 (Suresh Bhaiyyalal Jaiswal & 11 others Vs. M/s Konkan Agro Marine Induestries Pvt. Ltd. & 28 others) WITH CIVIL APPLICATION (CAO) NO. 896 OF 2010 IN COMPANY APPEAL ST. NO. 12222/10 (M/s Vidarbha Bottlers Pvt. Ltd. & 3 others Vs. Devilal Hardeelal Jaiswal & 4 others) ...................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ...................................................................................................................................................................... Shri Anjan De, Advocate for the applicants. Shri S. P. Dharmadhikari, Sr. Counsel H/f Shri D. V. Chauhan, Advocate for the respondents. CORAM : R. K. DESHPANDE, J. DATED : 04 FEBRUARY, 2011. 1. This is an application for condonation of delay of 689 days in filing appeal under Section 10F of the Companies Act, 1956. Shri De, learned Counsel appearing for the applicants seeks permission to withdraw this application with liberty to file writ petition. This is opposed by Shri Dharmadhikari, learned senior Counsel appearing for the non applicants. 2. The petitioners had earlier filed Writ Petition No. 2049 of 2010 challenging the same order passed by the Company Law Board. In the said writ petition an order was passed by this Court on 10/6/2010, which runs as under : “Heard Shri De, learned Counsel for the petitioners. The remedy of filing appeal under Section 10F of Companies Act before the Company Court is available to the petitioners. Hence, with liberty to exhaust that remedy, 0402cao895.10.odt 2/3 present writ petitions are disposed of. No costs.” In view of the aforesaid order, there is no question of granting liberty. If it is otherwise, permissible in law or available to the petitioners, the same cannot be prevented. 3. In view of the above, the application is permitted to be withdrawn. 4. At this stage, Shri De, learned Counsel for the applicants submits that if the liberty is not to be granted by this Court, then he would like to press the application for decision on its own merits. Heard the learned Counsels on merits of the application also. 5. It is not in dispute that the order impugned in this appeal was passed by the Company Law Board on 30/6/2008. Writ petition No. 2049 of 2010 was preferred by the applicants on 01/4/2010, which was disposed of on 10/6/2010. The application for condonation of delay states that the period from 30/6/2008 to 05/12/2009 was spent in exploring the possibility of settlement by the correspondence. Thereafter, the period from 01/4/2010 to 10/6/2010 was spent in prosecuting the writ petition. Hence, the condonation of delay caused from 30/6/2008 to 01/4/2010 is sought on the ground that the applicants were engaged bonafide in exploring the possibility of settlement and from 01/4/2010 to 10/6/2010, they were bonafidely prosecuted the writ petition. 6. Section 10F of the Companies Act, which is relevant, is reproduced below : 0402cao895.10.odt 3/3 “Appeals against the order of the Company Law Board.- Any person aggrieved by any decision or order of the Company Law Board made before the commencement of the Companies (Second Amendment) Act, 2002 may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order: 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 sixty days.” Perusal of Section 10F shows that the period of limitation of 60 days prescribed therein starts from the date of communication of the order of the Company Law Board. The High Court is empower to codone the delay under the proviso only for the period of 60 days, thereafter. It is not disputed that the provisions of Section 5 of the Limitation Act cannot be invoked in respect of appeal filed under Section 10F of the Companies Act, in view of the decision of this Court in the case of Smt. Hetal Alpesh Muchhala Vs. Adityesh Educational Institute and others reported in [2009] 152 Comp Cas 75 (Bom). Undisputedly, the petition was filed after lapse of 1 year and 9 months from the date of communication of the order passed by the Company Law Board. In view of this, the delay being beyond the period of 60 days, as specified in the proviso to Section 10F of the Companies Act, the question of its condonation does not arise. The application is, therefore, dismissed. JUDGE wwl