Case Law Details
By this company application, the applicant (original appellant) seeks condonation of delay of 135 days in lodging the company appeal against the impugned order dated 27-3-2014 passed by the Company Law Board. Mr. Dubash, learned counsel appearing for the respondent raises a preliminary issue that this Court has no power to condone the delay beyond the period of 60 days and that also provided sufficient cause for seeking condonation of delay is made out.
2. Learned counsel appearing for the applicant in support of this application submits that the impugned order was passed on 27-3-2014. The applicant received the certified copy of the impugned order on 2-4-2014. The applicant lodged the company appeal on 17-10-2014 before this Court. He submits that the applicant had severe medical condition and stress and was advised complete rest at home and was under the treatment of Dr. B.T. Kate, M.D. Consulting Physician. He submits that as a result thereof, the applicant could not give instructions to his advocate to ensure that the present appeal is filed within time.
3. It is submitted by the learned counsel for the applicant that the applicant had also suffered with paroitid carcinama and was admitted and operated at Nanavati and Tata Memorial Hospital during the said period. Learned counsel invited my attention to a medical certificate dated 18-10-2014 issued by Dr. B.T. Kate, certifying that the appellant was under his treatment.
4. Insofar as the preliminary objection raised by the respondent is concerned, Mr. Merchant, learned counsel for the applicant submits that the applicant was prevented by sufficient cause from filing the appeal within the time prescribed under section 10-F of the Companies Act, 1956. He submits that several questions of law are involved in the company appeal filed by the applicant and thus this Court has ample power to condone the delay beyond the period of 60 days by exercising powers under section 5 of the Limitation Act, 1963. Learned counsel invited my attention to the judgment of the Supreme Court delivered on 4-1-2017 in case of Patel Brothers v. State of Assam & Ors. (2017) 2 SCC 350 and in particular paragraphs 13 to 19. He submits that the Companies Act, 1956 is not a special Act and thus provisions under section 4 to 12 are not excluded. Reliance is also placed on section 29(2) of the Limitation Act, 1963.
5. Learned counsel also fairly invited my attention to the judgment of this Court delivered on 17-9-2009 in case of Smt. Hetal Alpesh Muchhala v. Adityesh Educational Institute & Ors. in Company Application No. 843 of 2009 in Company Appeal (Lodging) No. 48 of 2009, the judgment of this Court delivered on 11-3-2014, in case of Jagdish Lal Gupta v. Tara Industries Limited, Mumbai & Ors. in Company Application (Lodging) No. 32 of 2013 and also the judgment of the Punjab & Haryana High Court in case of Pawan Goel v. Kmg Milk Food Limited & Ors. delivered on 22-2-2008.
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