TMI Blog2021 (7) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... a certified copy only on 08.08.2020 and received it on 12.08.2020 and filed this Appeal on 06.11.2020 after 86 days. The ground that the MD was not available for 20 days as he was infected with Covid, though we consider genuine, does not prevent a Company comprising other Directors to prefer an Appeal. It is submitted that the Order dated 19.01.2020 was uploaded on 22.01.2020. 45 days from that date also expires on 06.03.2020, prior to the lockdown period - 45 days as contemplated under Section 421(3) of the Companies Act, 2013, is to be counted from 10.01.2020 and the period ends on 24.02.2020 and it is seen from the record that the Appellant herein filed this Appeal only on 06.11.2020. By virtue of the proviso to Section 421(3), this Tribunal is empowered to condone the delay up to a period of 45 days - the Limitation has expired prior to 15.03.2020 and therefore the question of applicability of the Orders relied upon by the Learned Counsel for the Appellants do not apply to the facts of this case. The Scheme of the Amalgamation was discussed and approved on 02.01.2018, had taken effect on 31.03.2018 and the said Scheme was approved by NCLT way back vide Impugned Order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Kumar Deka, Mr. Dharani Dhar Baruah who are arrayed as Respondents No. 3, 4, 5 6 and are also the common Directors and Shareholders of both the Transferor Company and the Transferee Company . 4. Submissions on behalf of Learned Counsel for the Appellant on Limitation: It is submitted that the Appellants first came to know about the Impugned Orders dated 05.11.2019 and 09.01.2020 only on 27.06.2020 when the Board Meeting of the Transferee Company was held; that it was only at this meeting that the 3rd Respondent for the first time instructed the Company Secretary to take steps for giving effect to the Orders passed by NCLT and submit the necessary papers to the RoC. Prior to the Board Meeting dated 27.06.2020, there were five Board Meetings of the Transferee Company that were held on 10.01.2020, 06.05.2020, 15.05.2020, 20.05.2020 and 04.06.2020, but the Impugned Orders were never placed in these previous five Meetings for the perusal of the Members. On account of the lockdown in Assam, the certified copy was applied for only on 08.08.2020 and received on 12.08.2020 and therefore the Appeal was filed on 06.11.2020 which is within 90 days from the date of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. b) In Suo Motu Writ Petition (Civil) No. 3 of 2020, Order dated 08.03.2021 filed on 30.04.2021:- The aforesaid writ petition was finally disposed of by the Hon ble Court on 08.03.2021 wherein a number of directions were passed. The Direction No. 3 which is relevant for the instant case reads as follows: The period from 15.03.3030 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29 A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. c) In Miscellaneous Application No. 665/2021 in SMW (C) No. 3/2020, Order dated 27.04.2021 filed on 30.04.2021:- The Court restored its previous orders dated 23.03.2020 and 08.03.2021 and reit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts regarding date of knowledge of the Impugned Orders. That the first Appellant was present at the Board Meeting dated 10.01.2020, which is one day immediately after the date of the rectified Impugned Order dated 09.01.2020, the same was discussed in the Board Meeting held on 10.01.2020 and the Minutes thereof were circulated in the email dated 18.01.2020. The first and second Appellants are Directors in the second Respondent Company and its their own averment that they were present at the Shareholder Meetings directed to be held by NCLT, for considering the scheme of Amalgamation which was held on 14.05.2019 under the chairmanship of the Advocate appointed by the Hon ble Tribunal. The Learned Counsel further submitted that the Minutes of the said Shareholders Meeting has been annexed by the Appellants and there is no mention of any resistance or objection to the said scheme. Learned Counsel drew our attention to the Secretarial Standard for Board Meetings which is prescribed as follows:- It is submitted that the Secretarial Standard for Board meetings (SS-1) prescribes as follows Within fifteen days from the date of the conclusion of the Meeting of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.06.2020:- (Emphasis Supplied) 12. From the aforenoted Minutes, it is evident that the Appellant with respect to the correction of the Order dated 05.11.2019 was discussed prior to the 5th Meeting; that the Appellant herein Dr. Sarma has clearly noted the transfer of all the assets and liabilities of the Transferor Company to the Transferee Company ; the approval of the scheme of Amalgamation; the merging of the books of accounts and the authorization of the Managing Director to write to the RoC to make the necessary corrections in the record of the Company for enhancing the authorized share capital, necessary to implement the Order of the Hon ble NCLT. 13. It is also relevant to mention that the email dated 18.01.2020 filed here as Annexure B clearly specifies that the draft Minutes of the Board Meeting held on 10.01.2020 was circulated by Ms. Seema Sharma to the Appellants herein. It is significant to note that the Rejoinder filed by the Appellants, is silent about this email. Since, admittedly the Impugned Order dated 05.11.2019 was rectified on 09.01.2020, it is apposite to note whether the Board Meeting held on 10.01.2020, this matter was brought to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sewerage Board Versus Subash Projects and Marketing Limited', 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) 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 limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 341(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-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the Appellants are silent about the receipt of free copy. Be that as it may, they chose to apply for a certified copy only on 08.08.2020 and received it on 12.08.2020 and filed this Appeal on 06.11.2020 after 86 days. The ground that the MD was not available for 20 days as he was infected with Covid, though we consider genuine, does not prevent a Company comprising other Directors to prefer an Appeal. It is submitted that the Order dated 19.01.2020 was uploaded on 22.01.2020. 45 days from that date also expires on 06.03.2020, prior to the lockdown period. A bare reading of the Minutes of the Meeting dated 10.01.2020 shows that the Appellants herein who attended the Meeting were aware that the Impugned Order dated 05.11.2019 passed by NCLT approving the Amalgamation of the Transferor Company with the Transferee Company have some typographical errors and that an Application has been made. Therefore, the contention of the Learned Sr. Counsel that the Impugned Order dated 05.11.2019, though corrected on 09.01.2020 (the issue of correction which was discussed in the Board Meeting dated 10.01.2020), was never in the knowledge of the Appellants herein in the five Board Meetings me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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