SAGUFA AHMED & ORS. versus UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD. & ORS.
[2020] 9 S.C.R. 472, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SAGUFA AHMED & ORS.
v.
UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD. & ORS.
(Civil Appeal Nos. 3007-3008 of 2020)
SEPTEMBER 18, 2020
[S. A. BOBDE, CJI, A. S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Companies Act, 1956:
s. 421(3) Proviso – Delay of more than 45 days – In filing
appeal – Against order of National Company Law Tribunal –
Application for condonation of delay as well as the appeal dismissed
by Appellate Tribunal – Appeal to Supreme Court – Held: Appellate
Tribunal was empowered to condone the delay only upto period of
45 days – The delay beyond 45 days could not have been condoned
even in view of the order of the Supreme Court whereby the period
of limitation was extended in view of Covid-19 pandemic.
Maxims:
‘Vigilantibus Non Dormientibus Jura Subveniunt’ –
Applicability of.
Limitation Act, 1963:
s. 4 – Expression ‘prescribed period’ under – Connotation of
– Held: The expression denotes period of limitation and not the
period during which the Court/ Tribunal has discretion to allow a
person to institute the proceedings.
Words and Phrases:
Expression “prescribed period’ – Meaning of, in the context
of s.4 of Limitation Act, 1963.
Dismissing the appeals, the Court
HELD: 1.1 It is true that the period of limitation of 45
days prescribed in Section 421(3) would start running only from
the date on which a copy of the order of the Tribunal is made
available to the person aggrieved. It is also true that under Section
420(3) of the Act read with Rule 50, the appellants were entitled
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to be furnished with a certified copy of the order free of cost.
Therefore if the appellants had chosen not to file a copy
application, but to await the receipt of a free copy of the order in
terms of Section 420(3) read with Rule 50, they would be perfectly
justified in falling back on Section 421(3), for fixing the date from
which limitation would start running. But the appellants, chose
to apply for a certified copy after 27 days of the pronouncement
of the order in their presence and they now fall back upon Section
421(3). [Paras 13 and 14][477-D-F]
1.2 From 19.12.2019, the date on which a certified copy
was admittedly received by the counsel for the appellants, the
period of limitation cannot be stopped from running. From
19.12.2019, the date on which the counsel for the appellants
received the copy of the order, the appellants had a period of 45
days to file an appeal. This period expired on 02.02.2020. By
virtue of the proviso to Section 421(3), the Appellate Tribunal
was empowered to condone the delay upto a period of 45 days.
This period of 45 days started running from 02.02.2020 and it
expired even according to the appellants on 18.03.2020. The
appellants did not file the appeal on or before 18.03.2020, but
filed it on 20.07.2020. The lock down was imposed only on
24.03.2020. [Paras 15, 16 and 17][477-G-H; 478-A-B]
2.1 To get over their failure to file an appeal on or before
18.03.2020, the appellants rely upon the order of this Court dated
23.03.2020 wherein this Court has taken Suo Motu cognizance of
the situation arising out of the challenge faced by the country on
account of Covid-19 Virus and resultant difficulties that might be
faced by litigants across the country in filing their petitions/
applications/suits/appeals/all other proceedings within the period
of limitation prescribed under the general law of limitation or
under Special Laws (both Central and/or State). What was
extended by the above order of this Court was only “the period
of limitation” and not the period upto which delay can be condoned
in exercise of discretion conferred by the statute. The above order
was intended to benefit vigilant litigants who were prevented due
to the pandemic and the lockdown, from initiating proceedings
within the period of limitation prescribed by general or special
law. The law of limitation finds its root in two latin maxims, one of
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PRODUCTS PVT. LTD. & ORS.
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which is Vigilantibus Non Dormientibus Jura Subveniunt which
means that the law will assist only those who are vigilant about
their rights and not those who sleep over them. Therefore, the
appellants cannot claim the benefit of the order passed by this
Court on 23.03.2020, for enlarging, even the period up to which
delay can be condoned. [Paras 18, 19 and 25][478-C-E; 479-B-
C; 481-D]
2.2 Section 10 of the General Clauses Act, 1897 provides
for Computation of time. The principle forming the basis of Section
10(1) of the General Clauses Act, also finds a place in Section 4
of the Limitation Act, 1963 which provides for expiry of prescribed
period when court is closed. The words “prescribed period” appear
in several Sections of the Limitation Act, 1963. Though these
words “prescribed period” are not defined in Section 2 of the
Limitation Act, 1963, the expression is used throughout, only to
denote the period of limitation. The expression “prescribed
period” appearing in Section 4 cannot be construed to mean
anything other than the period of limitation. Any period beyond
the prescribed period, during which the Court or Tribunal has the
discretion to allow a person to institute the proceedings, cannot
be taken to be “prescribed period”. [Paras 20, 21, 22 and 23][479-
D, G, H; 480-B-C, E]
Assam Urban Water Supply and Sewerage Board v.
Subash Projects and Marketing Limited (2012) 2 SCC
624 : [2012] 1 SCR 403 – relied on.
Case Law Reference
[2012] 1 SCR 403
relied on
Para 24
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3007-
3008 of 2020.
From the Judgment and Order dated 04.08.2020 of the National
Company Law Appellate Tribunal, New Delhi (NCLAT) in I.A. No.
1771 of 2020 with Company Appeal (AT) No. 118 of 2020.
Sajan Poovayya, Sr.Adv., Gunjan Singh, Satya Mitra,
Chandrashekhar A. Chakalabbi, Angshuman Sarma, Prathibhanu, Raksha
Agarwal, Shiv Kumar Pandey, Awanish Kumar, Anshul Rai for
M/s. Dharmaprabhas Law Associates, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Challenging an order passed by the National Company Law
Appellate Tribunal (hereinafter referred to as ‘NCLAT’) dismissing an
application for condonation of delay as well as an appeal as time barred,
the appellants have come up with the above appeals.
2. We have heard Mr. Gunjan Singh, learned counsel for the
appellants and Mr. Sajan Poovayya, learned Senior Counsel who accepts
notice on behalf of the first respondent.
3. The appellants herein together claim to hold 24.89% of the
shares of a company by name Upper Assam Plywood Products Private
Limited, which is the first respondent herein. The appellants moved an
application before the Guwahati Bench of the National Company Law
Tribunal (hereinafter referred to as ‘NCLT’) for the winding up of the
company. The said petition was dismissed by the NCLT by an order
dated 25.10.2019.
4. According to the appellants, they applied for a certified copy of
the order of the NCLT dated 25.10.2019, on 21.11.2019 (though the
appellants have claimed in the Memo of Appeal that they applied for a
certified copy on 21.11.2019, the copy application filed as Annexure P-
1 bears the date 22.11.2019).
5. According to the appellants, the certified copy of the order
dated 25.10.2019 passed by the NCLT was received by their counsel on
19.12.2019, pursuant to the copy application made on 21.11.2019.
6. Though the appellants admittedly received the certified copy
of
the order on 19.12.2019, they chose to file the statutory appeal before
NCLAT on 20.07.2020. The appeal was filed along with an application
for condonation of delay.
7. By an order dated 04.08.2020, the Appellate Tribunal dismissed
the application for condonation of delay on the ground that the Tribunal
has no power to condone the delay beyond a period of 45 days.
Consequently the appeal was also dismissed. It is against the dismissal
of both the application for condonation of delay as well as the appeal,
that the appellants have come up with the present appeals.
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS.
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8. The contentions raised by the learned counsel for the appellants
are two-fold namely (i) that the Appellate Tribunal erred in computing
the period of limitation from the date of the order of the NCLT, contrary
to Section 421(3) of the Companies Act, 2013,  and (ii) that the Appellate
Tribunal failed to take note of the lockdown as well as the order passed
by this Court on 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of
2020, extending the period of limitation for filing any proceeding with
effect from 15.03.2020 until further orders.
9.  Let us now test the correctness of the contentions one by one.
Contention-1
10. Section 420(3) of the Companies Act, 2013 mandates the NCLT
to send a copy of every order passed under Section 420(1) to all the
parties concerned.  Section 420(3) reads as follows:
“420. Orders of Tribunal -
(1) xxxx
(2) xxxx
(3) The Tribunal shall send a copy of every order passed
under this section to all the parties concerned”.
11. Rule 50 of the National Company Law Tribunal Rules, 2016
also mandates the Registry of the NCLT to send a certified copy of the
final order to the parties concerned free of cost. However, Rule 50 also
enables the Registry of the NCLT to make available the certified copies
with cost as per schedule of fees in all other cases (meaning thereby ‘to
persons who are not parties’). Rule 50 reads as follows : -
“50. Registry to send certified copy. - The Registry shall send
a certified copy of final order passed to the parties concerned
free of cost and the certified copies may be made available
with cost as per the schedule of fees, in all other cases.”
12. Section 421(1) provides for a remedy of appeal to the Appellate
Tribunal as against an order of NCLT. Sub-Section (3) of Section 421
prescribes the period of limitation for filing an appeal and the proviso
thereunder confers a limited discretion upon the Appellate Tribunal to
condone the delay. Sub-Section (3) of Section 421 together with the
proviso thereunder reads as follows:
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“421.Appeal from orders of Tribunal -
(1) xxxx
(2) xxxx
(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.”
13. Therefore, it is true, as contended by the appellants, that the
period of limitation of 45 days prescribed in Section 421(3) would start
running only from the date on which a copy of the order of the Tribunal
is made available to the person aggrieved. It is also true that under Section
420(3) of the Act read with Rule 50, the appellants were entitled to be
furnished with a certified copy of the order free of cost.
14. Therefore if the appellants had chosen not to file a copy
application, but to await the receipt of a free copy of the order in terms
of Section 420(3) read with Rule 50, they would be perfectly justified in
falling back on Section 421(3), for fixing the date from which limitation
would start running. But the appellants in this case, chose to apply for a
certified copy after 27 days of the pronouncement of the
order in their
presence and they now fall back upon Section 421(3).
15. Despite the above factual position, we do not want to hold
against the appellants, the fact that they waited from 25.10.2019 (the
date of the order of NCLT) upto 21.11.2019, to make a copy application.
But atleast from 19.12.2019, the date on which a certified copy was
admittedly received by the counsel for the appellants, the period of
limitation cannot be stopped from running.
16. From 19.12.2019, the date on which the counsel for the
appellants received the copy of the order, the appellants had a period of
45 days to file an appeal. This period expired on 02.02.2020.
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS. [V. RAMASUBRAMANIAN, J.]
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17. By virtue of the proviso to Section 421(3), the Appellate Tribunal
was empowered to condone the delay upto a period of period of 45
days. This period of 45 days started running from 02.02.2020 and it
expired even according to the appellants on 18.03.2020. The appellants
did not file the appeal on or before 18.03.2020, but filed it on 20.07.2020.
It is relevant to note that the lock down was imposed only on 24.03.2020
and there was no impediment for the appellants to file the appeal on or
before 18.03.2020. To overcome this difficulty, the appellants rely upon
the order of this Court dated 23.03.2020. This takes us to the second
contention of the appellants.
Contention-2
18. To get over their failure to file an appeal on or before
18.03.2020, the appellants rely upon the order of this Court dated
23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020.  It reads as
follows:
“This Court has taken Suo Motu cognizance of the situation
arising out of the challenge faced by the country on account
of Covid-19 Virus and resultant difficulties that may be faced
by litigants across the country in filing their petitions/
applications/suits/appeals/all other proceedings within the
period of limitation prescribed under the general law of
limitation or under Special Laws (both Central and/or State).
To obviate such difficulties and to ensure that lawyers/
litigants do not have to come physically to file such
proceedings in
respective Courts/Tribunals across the country
including this Court, it is hereby ordered that a period of
limitation in all such proceedings, irrespective of the limitation
prescribed under the general law or Special Laws whether
condonable or not shall stand extended w.e.f. 15th March
2020 till further order/s to be passed by this Court in present
proceedings.
We are exercising this power under Article 142 read
with Article 141 of the Constitution of India and declare that
this order is a binding order within the meaning of Article
141 on all Courts/Tribunals and authorities.
This order may be brought to the notice of all High
Courts for being communicated to all subordinate Courts/
Tribunals within their respective jurisdiction.
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Issue notice to all the Registrars General of the High
Courts, returnable in four weeks.”
19. But we do not think that the appellants can take refuge under
the above order. What was extended by the above order of this Court
was only “the period of limitation” and not the period upto which
delay can be condoned in exercise of discretion conferred by the
statute. The above order passed by this Court was intended to benefit
vigilant litigants who were prevented due to the pandemic and the
lockdown, from initiating proceedings within the period of limitation
prescribed by general or special law. It is needless to point out that the
law of limitation finds its root in two latin maxims, one of which is
Vigilantibus Non Dormientibus Jura Subveniunt which means that
the law will assist only those who are vigilant about their rights and not
those who sleep over them.
20. It may be useful in this regard to make a reference to Section
10 of the General Clauses Act, 1897 which reads as follows:
“10. Computation of time - (1) Where, by any 19 [Central
Act] or Regulation made after the commencement of this Act,
any act or proceeding is directed or allowed to be done or
taken in any Court or office on a certain day or within a
prescribed period, then, if the Court or office is closed on
that day or the last day of the prescribed period, the act or
proceeding shall be considered as done or taken in due time
if it is done or taken on the next day afterwards on which the
Court or office is open:
      Provided that nothing in this section shall apply to any
act or proceeding to which the Indian Limitation Act, 1877
(15 of 1877), applies.
(2) This section applies also to all [Central Acts] and,
Regulations made on or after the fourteenth day of January,
1887.”
21. The principle forming the basis of Section 10(1) of the General
Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963
which reads as follows: -
“4. Expiry of prescribed period when court is closed.—Where
the prescribed period for any suit, appeal or application
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expires on a day when the court is closed, the suit, appeal or
application may be instituted, preferred or made on the day
when the court reopens.
Explanation.— A court shall be deemed to be closed on any
day within the meaning of this section if during any part of
its normal working hours it remains closed on that day.”
22. The words “prescribed period” appear in several Sections of
the Limitation Act, 1963. Though these words “prescribed period” are
not defined in Section 2 of the Limitation Act, 1963, the expression is
used throughout, only to denote the period of limitation. We may see a
few examples:
(i) Section 3(1) makes every proceeding filed after the prescribed
period, liable to be dismissed, subject however to the provisions in Sections
4 to 24.
(ii) Section 5 enables the admission of any appeal or application
after the prescribed period.
(iii) Section 6 uses the expression prescribed period in relation
to proceedings to be initiated by persons under legal disability.
23. Therefore, the expression “prescribed period” appearing in
Section 4 cannot be construed to mean anything other than the period of
limitation. Any period beyond the prescribed period, during which the
Court or Tribunal has the discretion to allow a person to institute the
proceedings, cannot be taken to be “prescribed period”.
24. In Assam Urban Water Supply and Sewerage Board Versus
Subash Projects and Marketing Limited1, this Court dealt
with the
meaning of the words “prescribed period” in paragraphs 13 and 14 as
follows:
“13. The crucial words in Section 4 of the 1963 Act are
“prescribed period”. What is the meaning of these words?
14. Section 2(j) of the 1963 Act defines”
“2(j) ‘period of limitation’ which means the period of
limitation prescribed for any suit, appeal or application by
the Schedule, and ‘prescribed period’ means the period of
1 (2012) 2 SCC 624
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limitation computed in accordance with the provisions of this
Act.
Section 2(j) of the 1963 Act when read in the context of Section
34(3) of the 1996 Act, it becomes amply clear that the
prescribed period for making an application for setting aside
arbitral award is three months. The period of 30 days
mentioned in proviso that follows sub-section (3) of Section
34 of the 1996 Act is not the ‘period of limitation’ and,
therefore, not ‘prescribed period’ for the purposes of making
the application for setting aside the arbitral award. The period
of 30 days beyond three months which the court may extend
on sufficient cause being shown under the proviso appended
to sub-section (3) of Section 34 of the 1996 Act being not the
‘period of limitation’ or, in other words, ‘prescribed period’,
in our opinion, Section 4 of the 1963 Act is not, at all,
attracted to the facts of the present case.”
25. Therefore, the appellants cannot claim the benefit of the order
passed by this Court on 23.03.2020, for enlarging, even the period up to
which delay can be condoned. The second contention is thus untenable.
Hence the appeals are liable to be dismissed. Accordingly, they are
dismissed.
Kalpana K. Tripathy
Appeals dismissed.
SAGUFA AHMED & ORS. v. UPPER ASSAM PLYWOOD
PRODUCTS PVT. LTD. & ORS. [V. RAMASUBRAMANIAN, J.]