TaxTMI 
TaxTMI 
2021 (7) TMI 817
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....R-6. CS Biman Debnath JUDGEMENT [ Per ; Shreesha Merla , Member ( T ) ] 1. Aggrieved by the Orders dated 05.11.2019 and 09.01.2020 passed by the NCLT (National Company Law Tribunal, Guwahati Bench, Guwahati) in C.P. (CAA)/07/GB/2019 in CA (CAA)/01/GB/2019, the Appellants preferred this Appeal under Section 421 of the Companies Act, 2013 (hereinafter referred to as the 'Act'). 2. The Tribunal has sanctioned the scheme of Amalgamation of M/s. Complete Medical Care & Research Institute Private Limited (the first Respondent) and M/s. Nemcare Hospitals Private Limited (the second Respondent) vide an Order dated 05.11.2019. Subsequently, the Tribunal had rectified certain typographical errors that have crept in the Order and pronounced the rectified Order on 09.01.2020. The first and second Appellants are Directors and Shareholders of the second Respondent, 'Transferee Company' and the 3rd & 4th Appellants are also Shareholders of the 'Transferee Company'. 3. The first Respondent (hereinafter referred to as the 'Transferor Company') and the second Respondent (hereinafter referred to as the 'Transferee Company') are promoted by the same promoters, Dr. Hitesh Baruah, Dr. Mih....
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.... after 90 days from their receipt of the certified copy, that the Judgement was passed in the context of the previous Order dated 23.03.2020 passed by the Hon'ble Supreme Court and not subsequent to the Orders dated 18.03.2021 and 27.04.2021 would now holds the field for all purposes; the Hon'ble Supreme Court in its subsequent Orders dated 18.03.2021 and 27.04.2021 has specifically used the expression 'outer limits within which the Court or Tribunal can condone the delay', the use of the aforesaid categorical expression by the Hon'ble Supreme Court would mean that the outer limit of 45 days under the proviso Section 421(3) also stood extended with effect from 15.03.2020 and this extension is continuing in view of the Order dated 27.04.2021 passed by the Hon'ble Apex Court. 6. In support of his argument, Learned Sr. Counsel placed reliance on the decision of the Hon'ble Supreme Court in their Orders dated 23.03.2020, 08.03.2021 and 27.04.2021 which read as hereunder:- "a) In SUO MOTU WRIT PETITION (CIVIL) No(s). 3/2020 Order dated 23.03.2020 filed on 30.04.2021:- The Hon'ble Court directed to the effect that "it is hereby ordered that a period of limitation in ....
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....r the Financial Year 2017-18 up to 31.03.2018, then a question would arise as to how the Board of Directors of the respected Companies declared the Shares Swap Ratio on 03.01.2018 and 02.01.2018. Even though the position for Amalgamation before NCLT was filed by the Respondent on 20.02.2019, the Valuation Report dated 07.02.2019 was not annexed and was only filed after the direction of the NCLT on 08.03.2019. There is no Board Resolution appointing M/s. Amlan Bhadra & Associates which is not a registered valuer, as envisaged in Section 247 and moreover no particulars have been provided in the purported report as to how the share entitlement ratio was arrived at, thereby disregarding the methodology in calculating the valuation of each share of both the Companies, which is contrary to law. 8. Submissions on behalf of Learned Counsel appearing on behalf of the Respondents: Learned Counsel appearing on behalf of the Respondents vehemently contended that the Appeal was barred by Limitation as the Impugned Order was passed on 05.11.2019 and rectified on 09.01.2020 and the prescribed period of Limitation is 45 days from the date of passing of the Order which....
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....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." 10. It is an admitted fact that in the first Impugned Order dated 05.11.2019 there were some errors which were rectified by the NCLT on 09.01.2020. It is the case of the Learned Counsel for the Appellants that though there were five Board Meetings held on 10.01.2020, 06.05.2020, 15.05.2020, 20.05.2020 and on 04.06.2020 the Impugned Orders were never discussed and it was only in the Board Meeting of the 'Transferee Company' held on 27.06.2020 that the Impugned Orders were first brought to the notice of the Appellants. 11. At this juncture, we find it pertinent to reproduce the relevant portion of the Minutes of the 5th ....
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....The Hon'ble Supreme Court in Civil Appeal Nos. 3007-3008 of 2020 in 'Sagufa Ahmed & Ors.' Vs. 'Upper Assam Plywood Products Pvt. Ltd. & Ors.' page 20 Annexure C has observed as follows:- "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".... "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 Cour....
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....Order dated 09.01.2020. It is significant to mention that the Order dated 09.01.2020 in a joint Petition filed by both the 'Transferor and the Transferee Companies' in IA 86 of 2019 in C.P. (CAA)/07/GB/2019 only sought for rectification of the following typographical errors:- (1) The name of the 'Transferee Company' was wrongly mentioned as "SPBP Tea Plantation Limited" (i.e. 'Transferee Company') instead of "M/s. Nemcare Hospitals Pvt. Ltd." at page 9 in sub-para 2. (2) The word "that" is typed twice in the beginning of sub-para 4 and in the third line, the word "creditor" is wrongly typed instead of "each" after the words "113 (One Hundred Thirteen equity shares of Rs. 10/-". 17. Rule 50 of the National Company Law Tribunal Rules, 2016 also mandates the Registry of the NLCT 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 certifie....
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....or 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. 19. For all the aforenoted reasons specially keeping in view the fact that (a) 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 dated 05.11.2019 and that this Appeal was filed on 06.11.2020, (b) a perusal of the Minutes of the Meetings of the Board Meetings filed before us do not evidences any objections raised by the Appellants at that point of time i.e. when the Scheme of Amalgamation was approved and (c) the period of Limitation prescribed under Section 421(3) of the Act has lapsed on 24.02.2020 much prior to the lockdown period/pandemic situation and hence having regard to the facts and circumstances of the attendant case, we do not see it a fit case, in the interest of Justice to exercise any discretion empowered under proviso of Section 421(3) and condone the delay in the absence of any 'sufficient cause' and 'substantial reasons'. 20. In the result, this Appeal is dismissed accord....