BENGAL CHEMISTS & DRUGGISTS ASSN v. KALYAN CHOWDHURY

Judgment

2 S.C.R. 1099 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 1099 A B C D E F G H 1100 SUPREME COURT REPORTS [2018] 2 S.C.R. 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.