BENGAL CHEMISTS & DRUGGISTS ASSN. versus KALYAN CHOWDHURY
[2018] 2 S.C.R. 1099, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Arguments
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1099
BENGAL CHEMISTS & DRUGGISTS ASSN.
v.
KALYAN CHOWDHURY
(Civil Appeal No. 684 of 2018)
FEBRUARY 02, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Companies Act, 2013 – s.421(3) – National Company Law
Appellate Tribunal after setting out s.421(3) of the Act, dismissed
appeal as not maintainable, inasmuch as the appeal was filed 9
days after the period of limitation of 45 days had expired and a
further period of another 45 days had also expired – Appellant
contended that u/s.433 of the Act, the provisions of the Limitation
Act shall, as far as may be, apply to appeals before the Appellate
Tribunal and that therefore, s.5 of the Limitation Act would be
applicable to condone the delay beyond the period of 90 days –
Held: There is no reason to interfere with the judgment under appeal
– It is not possible for s.5 of the Limitation Act to apply given the
peremptory language of s.421(3) of the Companies Act – Cursory
reading of s.421(3) makes it clear that the proviso thereto provides
a period of limitation different from that provided in the Limitation
Act, and also provides a further period not exceeding 45 days only
if it is satisfied that the appellant was prevented by sufficient cause
from filing the appeal within that period – s.433 cannot come to the
aid of the appellant because the provisions of the Limitation Act
only apply “as far as may be” – In instant case, where there is a
special provision contained in s.421(3) proviso, s.5 of the Limitation
Act cannot
apply – Limitation Act, 1963 – s.5.
Dismissing the appeal, the Court
HELD: 1. A cursory reading of Section 421(3) of the
Companies Act, 2013 makes it clear that the proviso thereto
provides a period of limitation different from that provided in the
Limitation Act, and also provides a further period not exceeding
45 days only if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal within that period.  Section
433 obviously cannot come to the aid of the appellant because
the provisions of the Limitation Act only apply “as far as may
[2018] 2 S.C.R. 1099
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be”.  In a case like the present, where there is a special provision
contained in Section 421(3) proviso,  Section 5 of the Limitation
Act obviously cannot apply. [Para 4] [1102-E-F]
2. Another very important aspect of the case is that 45
days is the period of limitation, and a further period not exceeding
45 days is provided only if sufficient cause is made out for filing
the appeal within the extended period. This is a peremptory
provision. Appellant contended that under Section 433 of the Act,
the provisions of the Limitation Act, 1963 shall, as far as may be,
apply to Appeals before the Appellate Tribunal and that therefore,
Section 5 would be applicable to condone the delay beyond the
period of 90 days.  If such argument is accepted, it would mean
that notwithstanding that the further period of 45 days had
elapsed, the Appellate Tribunal may, if the facts so warrant,
condone the delay.  This would be to render otiose the second
time limit of 45 days, which, as has been pointed out by us above,
is peremptory in nature. [Para 5] [1102-F-H]
Chhattisgarh SEB v. Central Electricity Regulatory
Commission, (2010) 5 SCC 23 : [2010] 4 SCR 680 –
relied on.
Mangu Ram v. Municipal Corporation of Delhi (1976)
1 SCC 392 : [1976] 2 SCR  260 – distinguished.
Guda Vijayalakshmi v. Guda Ramachandra Sekhara
Sastry (1981) 2 SCC 646 : [1981] 3 SCR 223;
Dr. Partap Singh and Another v. Director of
Enforcement, Foreign Exchange
Regulation Act and
Others (1985) 3 SCC 72 : [1985] 3 SCR 969 –
inapplicable.
Union of India v. Popular Construction Co. (2001) 8
SCC 470 : [2001] 3 Suppl.  SCR 619; ONGC v. Gujarat
Energy Transmission Corporation Limited (2017) 5 SCC
42 – referred to.
Case Law Reference
[2001] 3 Suppl. SCR 619
referred to
Para 2
[2010] 4 SCR 680
relied on
Para 6
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(2017) 5 SCC 42
referred to
Para 6
[1981] 3 SCR  223
inapplicable
Para 7
[1985] 3 SCR  969
inapplicable
Para 8
[1976] 2 SCR 260 
distinguished
Para 10
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 684 of
2018.
From the Judgment and Order dated 31.07.2017 of the National
Company Law Appellate Tribunal (NCLAT), New Delhi in Company
Appeal (AT) No. 76 of 2017.
Jayant Mehta, Ms. Pratiksha Sharma, Shivanker Beher, Ankit
Aacharya, Rahul Kukreja, Advs. for the Appellant.
Sankar N. Sinha, Satish Kumar,  Advs. for the Respondent.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.  1. The present appeal is against an order
of the National Company Law Appellate Tribunal dated 31.07.2017 by
which the Appellate Tribunal, after setting out Section 421(3) of the
Companies Act, 2013, (for short ‘the Act’) has dismissed the appeal as
not maintainable, inasmuch as the appeal has been filed 9 days after the
period of limitation of 45 days has expired and a further period of another
45 days has also expired.
2. Mr. Jayant Mehta, learned counsel appearing on behalf of the
appellant, has argued the matter persuasively before us.  He points out
that Section 421(3) of the Act does not contain the language of Section
34(3) proviso of the Arbitration Act, 1996 which contains the words “but
not thereafter” which Union of India vs. Popular Construction Co.
(2001) 8 SCC 470 considered.  He further points out that, in any case,
under Section 433 of the Act, the provisions
of the Limitation Act, 1963
shall, as far as may be, apply to Appeals before the Appellate Tribunal
and that therefore, Section 5 would be applicable to condone the delay
beyond the period of 90 days.  He has buttressed his submission by
referring to various decisions of this Court.
3. Before coming to the judgments of this Court, it is important to
first set out Section 421(3) and Section 433 of the Act.  These provisions
read as follows:
BENGAL CHEMISTS & DRUGGISTS ASSN. v. KALYAN
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“421. Appeal from orders of Tribunal.-
    **** **** ****
(3) Every appeal under sub-section (1) shall be filed within
a period of forty-five days from the date on which a copy
of the order of the Tribunal is made available to the person
aggrieved and shall be in such form, 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.
433.  Limitation.- The provisions of the Limitation Act,
1963 shall, as far as may be, apply to proceedings or appeals
before the Tribunal or the Appellate Tribunal, as the case
may be.”
4. A cursory reading of Section 421(3) makes it clear that the
proviso provides a period of limitation different from that provided in the
Limitation Act, and also provides a further period not exceeding 45 days
only if it is satisfied that the appellant was prevented by sufficient cause
from filing the appeal within that period.  Section 433 obviously cannot
come to the aid of the appellant because the provisions of the Limitation
Act only apply “as far as may be”.  In a case like the present, where
there is a special provision contained in Section 421(3) proviso,  Section
5 of the Limitation Act
obviously cannot apply.
5. Another very important aspect of the case is that 45 days is the
period of limitation, and a further period not exceeding 45 days is provided
only if sufficient cause is made out for filing the appeal within the extended
period.  According to us, this is a peremptory provision, which will
otherwise be rendered completely ineffective, if we were to accept the
argument of learned counsel for the appellant. If we were to accept
such argument, it would mean that notwithstanding that the further period
of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant,
condone the delay.  This would be to render otiose the second time limit
of 45 days, which, as has been pointed out by us above, is peremptory in
nature.
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6. We are fortified in this conclusion by the judgment of this
Court in Chhattisgarh SEB v. Central Electricity Regulatory
Commission, 2010 (5) SCC 23. The language of Section 125 of the
Electricity Act, 2003, which is similar to the language contained in Section
421 (3) of the Companies Act, 2013, came up for consideration in the
aforesaid decision. The issue that arose before this Court was whether
Section 5 of the Limitation Act can be invoked for allowing the aggrieved
person to file an appeal beyond 60 days plus the further grace period of
60 days. This Court held that Section 5 cannot apply to Section 125 of
the Electricity Act in the following terms:
“25. Section 125 lays down that any person aggrieved by
any decision or order of the Tribunal can file an appeal to
this Court within 60 days from the date of communication
of the decision or order of the Tribunal. Proviso to Section
125 empowers this Court to entertain an appeal filed within
a further period of 60 days if it is satisfied that there was
sufficient cause for not filing appeal within the initial period
of 60 days. This shows that the period of limitation
prescribed for filing appeals under Sections 111(2) and
125 is substantially different from the period prescribed
under the Limitation Act for filing suits, etc. The use of
the expression “within a further period not exceeding 60
days” in the proviso to Section 125 makes it clear that the
outer limit for filing an appeal is 120 days.
There is no
provision in the Act under which this Court can entertain
an appeal filed against the decision or order of the Tribunal
after more than 120 days.”
The aforesaid judgment was reiterated and followed in ONGC v. Gujarat
Energy Transmission Corporation Limited, 2017 (5) SCC 42 at Para 5.
7. It now remains to deal with the decisions cited by learned counsel
appearing on behalf of the appellant.  The first is the judgment in Guda
Vijayalakshmi vs. Guda Ramachandra Sekhara Sastry, (1981) 2
SCC 646.  In that case, a Transfer Petition was filed under Section 25,
CPC, 1908 in this Court.  A preliminary objection was taken stating that
in view of Sections 21 and 21A of the Hindu Marriage Act, 1955, Section
25 would not be applicable. This was turned down by this Court stating
that Section 21 would not apply to substantive provisions of the Code as
BENGAL CHEMISTS & DRUGGISTS ASSN. v. KALYAN
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apart from procedural provisions. Equally, Section 21A of the Hindu
Marriage Act, 1955 only dealt with transfers “in certain cases”.  This
being so, the wide and plenary power conferred on this Court to transfer
any suit, appeal or other proceedings from one High Court to another
High Court or from one Civil Court in one State to another Civil Court in
any other State was held not be entrenched upon by Sections 21 and
21A of the Hindu Marriage Act. We fail to see how this judgment, in any
manner, furthers the proposition sought to be canvassed on behalf of the
appellant,  which is that Section 5 of the Limitation Act would continue
to apply even after a second period of 45 days is peremptorily laid down.
This judgment, therefore, does not carry the matter any further.
8. Reliance placed on Dr. Partap Singh and Another vs. Director
of Enforcement, Foreign Exchange Regulation Act and Others,
(1985) 3 SCC 72 is equally misplaced.   In this case, Section 37 of the
Foreign Exchange Regulation Act, 1973 was involved.  Section 37(2)
provides that the provisions of the Code relating to searches shall, so far
as may be, apply to searches directed under Section 37(1).  This Court
held that the expression “so far as may be” has always been construed
to mean that those provisions may generally be followed to the extent
possible.  In the fact scenario of that case, it was held that to give full
meaning to the expression ‘so far
as may be’, sub-section (2) of Section
37 should be interpreted to mean that broadly the procedure relating to
search as enacted in Section 165 shall be followed.
9. This case again does not take the matter any further. In fact,
the ratio of the judgment as far as this case is concerned is that the
expression “so far as may be” only means to the extent possible. If not
possible, obviously the Limitation Act would not apply.  We have already
held that it is not possible for Section 5 of the Limitation Act to apply
given the peremptory language of Section 421(3).
10. The third judgment is Mangu Ram vs. Municipal
Corporation of Delhi, (1976) 1 SCC 392. In this judgment, Section 417
of the Code of Criminal Procedure, 1898 provided for special leave to
appeal from an order of acquittal. Section 417 (4) required that the
application for special leave should be made before the expiry period of
60 days from the date of the order of acquittal.  Applying Section 29(2)
of the Limitation Act, this Court held that Section 5 of the Limitation
would not be impliedly excluded in such case despite the mandatory and
peremptory language contained in Section 417(4) of the Cr.P.C. This
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Court held that all periods of limitation are cast in such mandatory and
peremptory language and, therefore, Section 5 could not be said to be
impliedly excluded.
11. This case again is wholly distinguishable. It applies only to a
period of limitation which is given beyond which nothing further is stated
as to whether delay may be condoned beyond such period.  In the present
case, the Section 417(3) does not merely contain the initial period of 45
days, in which case the aforesaid judgment would have applied.  Section
417(3) goes on to state that another period of 45 days, being a grace
period given by the legislature which cannot be exceeded, alone would
apply, provided sufficient cause is made out within the aforesaid grace
period.  As has been held by us above, it is the second period, which is a
special inbuilt kind of Section 5 of the Limitation Act in the special statute,
which lays down that beyond the second period of 45 days, there can be
no further condonation of delay. On this ground therefore, the aforesaid
judgment also stands distinguished.
12. One further thing remains – and that is that learned counsel
for the appellant pointed out the difference between the expression used
in the Arbitration Act as construed by Popular Construction (supra)
and its absence in the proviso in Section 421(3).  For the reasons given
above, we are of the view that this would also make no difference in
view of the language of the proviso to Section 421(3) which
contains
mandatory or peremptory negative language and speaks of a second
period not exceeding 45 days, which would have the same effect as the
expression “but not thereafter” used in Section 34(3) proviso of the
Arbitration Act, 1996.
13. We, therefore, see no reason to interfere with the judgment
under appeal. The appeal is dismissed.
Ankit Gyan                                                                                           Appeal dismissed.
BENGAL CHEMISTS & DRUGGISTS ASSN. v. KALYAN
CHOWDHURY [R. F. NARIMAN, J.]