TaxTMI 
TaxTMI 
2026 (1) TMI 400
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.... Submissions on behalf of the appellant company .................... 16 II. Submissions on behalf of the respondent ................................... 18 E. ISSUES FOR DETERMINATION ...................................................... 21 F. ANALYSIS ............................................................................................... 22 I. The implementation of the provisions of the Act, 2013 in phases and the powers conferred upon the CLB in the period between 12.09.2013 and 01.06.2016. ................................................................ 22 II. Whether the CLB, being a quasi-judicial body, could be said to have the power to condone the delay in filing an appeal under Section 58(3) of the Act, 2013? ........................................................ 25 a. The Act, 1963, per say, does not apply to quasi-judicial bodies - emphasis on the court as an institution. ................. 25 b. Decisions of this Court as regards the application of Section 5 of the Act, 1963 to quasi-judicial bodies or tribunals ........ 37 c. Whether the principles underlying certain provisions of the Act,....
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.... respondent through her last will and testament dated 19.06.1987. Eventually, the respondent is also said to have obtained a probate of her will on 30.11.1990. 4. Vide letter dated 01.03.2013, i.e., after a gap of about 23 years from the date of obtaining the probate, the respondent's advocate had sent a notice to the appellant company seeking registration of the transmission of the subject shares. However, within a period of two months, vide communication dated 30.04.2013, the appellant company had replied to the aforesaid notice and refused such registration. It is pertinent to note that, during this period, it was Section 111 of the erstwhile Companies Act, 1956 (hereinafter, the "Erstwhile Act") which was in force. Sub-sections (2) and (3) respectively of Section 111 stipulated that the person giving intimation of the transmission of shares may prefer an appeal against such refusal before the CLB, but that this must be done within a period of two months from the receipt of the notice of refusal from the company. The said period of two months lapsed on 30.06.2013 and the respondent failed to take any action in this regard within the prescribed time period. 5. It is the cas....
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....ntified and the Bench Officer vide letter dated 16.12.2013 requested the same to be addressed and rectified within a period of 15 days. 9. The respondent thought fit to file a fresh petition instead of rectifying the defects as aforesaid and therefore, a fresh appeal under Section 58 of the Act, 2013 was filed before the CLB on 07.02.2014. The same came to be numbered as C.P. No. 31 of 2014. In the aforesaid appeal, the respondent had prayed for the following reliefs: "(a) An order may be passed directing the respondent company to register the transfer/transmission of 20 equity shares in favour of the petitioner within a period of ten days; (b) That an order may be passed to rectify the register of members of the respondent company and induct the same of the petitioner in place of the transferor in relation to the 20 shares in question and all benefits such as rights/bonus, etc. that have accrued thereupon since the date of purchase; (c) Such orders as to the cost as may be deemed appropriate by the Hon'ble Bench; (d) Such further directions as the Hon'ble Bench may be pleased to give;" 10. Along with the aforesaid appeal, the respondent al....
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.... interests of justice, the delay should be condoned. (iv) Lastly, considerable weight seems to have been placed on the fact that the underlying Company Petition bearing C.P. No. 31 of 2014 had been held to be maintainable and that the same was also affirmed by this Court. The relevant observations are reproduced hereinbelow: "5.1 Under the aforesaid facts and circumstances, it is clear that the Petitioner appears to have remained silent from 1990 till the beginning of 2013 and there is no explanation as to such inaction on the part of the petitioner for making request to the Respondent Company for transmission of 20 shares in his favour based on the probate of Will dated 30.11.1990. However, on 12.09.2013, new Section 58 of the Companies Act, 2013 has become effective and hence, the Petitioner was under obligation to initiate action for filing the Petition under Section 58 of the Companies Act, 2013 within the permissible time. However, due to his stay in London and procedural discussions/conferences and also, the Company Petition wrongly filed under section 111A of the Companies Act, 1956, delay has occurred for 249 days. Here, it is relevant to highlight that....
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....irst, it was acknowledged that under the provisions of the Erstwhile Act, the CLB would have the powers which are normally vested in a 'Court' only to the extent that Section 10E(4C) of the Erstwhile Act would allow. Therefore, it was a 'court' only in a restricted sense. Furthermore, it was stated that there cannot be any doubt that the provisions of Section 5 of the Act, 1963 would only be applicable to courts and not to any tribunal/quasi-judicial body including the CLB, unless such authorities are vested with the powers to condone delay. The decision of this Court in M.P. Steel Corporation v. Commissioner of Central Excise reported in (2015) 7 SCC 58 was discussed in this regard. (ii) Secondly, heavy reliance was placed on the decision of this Court in Canara Bank v. Nuclear Power Corporation of India Ltd. reported in (1995) Supp (3) SCC 81 and a decision rendered by the Division Bench of the Calcutta High Court in Smt. Nupur Mitra v. Basubani Ltd. reported in (1999) SCC OnLine Cal 47. It was stated that Nupur Mitra (supra) had held that in proceedings under Section 111 of the Erstwhile Act, the provisions of the Limitation Act would apply. This view of the Division Be....
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....anies Act. The Company Law Board is a quasi-judicial authority to be guided by the principles of natural justice in exercise of its power and discharge its functions under the Companies Act, 1956 and it shall act in its discretion. There cannot be any doubt that the provisions of Section 5 of the Limitation Act would only be applicable to the Courts and not to any Tribunal, Quasi-Judicial bodies including CLB unless such authorities are vested with the power of enlargement. In M.P. Steel Corporation (supra), the Hon'ble Supreme Court after taking into consideration a large number of decisions held that a series of decisions of the Supreme Court have also clearly held that the Limitation Act applies only to Courts and does not apply to quasi-judicial bodies and the decision in Madan Lal Das & Sons reported at ( 1976) 4 SCC, 464, a three-Judge Bench of the Supreme Court is per incuriam as it was decided without adverting to either Parson Tools, (1975) 4 SCC 22 or other earlier judgments. Madan Lal case, therefore, is not an authority for the proposition that the Limitation Act would apply to tribunals as opposed to courts. -xxx- The three decisions of the Company La....
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....e by the Division Bench of the Calcutta High Court, which decision was confirmed by the Supreme Court and the matter was remanded back to the Company Law Board for consideration afresh. In Smt. Nupur Mitra (supra) in Paragraph 65 of the said report, the Hon'ble Division Bench considered the applicability of the Limitation Act and held:- "65. Assuming that the Limitation Act, 1963 does apply, in the absence of a specific provision covering applications under Section 111, the residuary article namely Article 137 would apply. If the cause of action arose in 1996 as claimed by the appellants, the application under Section 111 having been filed in 1998 would be within time." -xxx- A Co-ordinate Bench in M/s Mackintosh Burn (supra) answered the said question in the manner following:- "Section 58(4) of the Act permits an application though the exact word used is "appeal" to be filed by a person within the time stipulated in such provision. The provision is for the benefit of the transferees of shares in a public company and the time-limits are 60 days from the date of the refusal to register the transfer or 90 days of the delivery of the in....
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....terfere with the order passed by the Company Law Board. Since legal issue sought to be raised is devoid on merit ACO No.91 of 2016 and APO No.222 of 2016 are dismissed. However, there shall be no order as to costs." (Emphasis supplied) D. SUBMISSIONS OF THE PARTIES I. Submissions on behalf of the appellant company 18. Ms. Nina Nariman, the learned counsel appearing on behalf of the appellant company submitted, at the outset, that the impugned decision fails to take into account the settled position of law that the Act, 1963 is not applicable to tribunals or quasi-judicial bodies. Therefore, the CLB acted without authority while condoning the delay of 249 days in filing the appeal under Section 58 of the Act, 2013. 19. It was submitted that Regulation 44 of the CLB Regulations saving the inherent powers of the CLB could not be said to empower it to circumvent the mandatory time-limit to file a petition provided in the statute and that the said regulation has no manner of application in the matter of condonation of delay in the instant case. The power of condonation has to be conferred specifically by the statute itself or by way of the statute adopting the pr....
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....pondent would submit that the impugned decision correctly arrived at the conclusion that there was no negligence on the part of the respondent in filing the appeal before the CLB under Section 58 of the Act, 2013 and also that the application seeking condonation of delay was rightly allowed. 26. The counsel would submit that Section 58(3) of the Act, 2013 prescribes a period of 30 days from the date of the notice of refusal from the company or in case no such notice was obtained, then a period of 60 days from the date the instrument of transfer or intimation of transmission was delivered to the company, within which an appeal must be preferred to the CLB (now, NCLT) by the transferee. 27. The counsel drew a comparison with Section 34 of the Arbitration and Conciliation Act, 1996 to indicate that unlike the said provision, which uses the words "but not thereafter", there was no indication under Section 58(3) that an appeal cannot be filed beyond the period of 30 or 60 days, as the case may be. 28. The counsel submitted that Section 29(2) of the Act, 1963 clearly provides that where any special or local law prescribes for any suit, appeal or application, a period of limitati....
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....ied to quasi-judicial bodies, whether the principles underlying Section 5 of the Act, 1963 be made applicable to an appeal under Section 58(3) of the Act, 2013, instituted before the CLB? II. Whether Section 433 of the Act, 2013 which was brought into force on 01.06.2016 in order to empower the NCLT and NCLAT respectively, to apply the provisions of the Act, 1963, could be given retrospective effect such that it applied to the CLB as well? F. ANALYSIS I. The implementation of the provisions of the Act, 2013 in phases and the powers conferred upon the CLB in the period between 12.09.2013 and 01.06.2016. 33. In order to ensure a smooth transition into the new framework, the Act, 2013 was implemented in phases. Section 1 of the Act, 2013 came into force on 30.08.2013. Section 1, itself, indicated that different dates may be appointed for the coming into force of different provisions. 34. A group of 98 sections or parts thereof was brought into force on 12.09.2013. It is noteworthy to mention that Section 58 of the Act, 2013 formed a part of this group. 35. Much thereafter, on 01.06.2016, Chapter XXVII which contained several provisions relating to the constitut....
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....t, by a person aggrieved by any decision or order of the CLB, that Section 10F of the Erstwhile Act, allowed the condonation of delay upon sufficient cause being shown. However, even this was capped for a further period not exceeding sixty days. In other words, the maximum period within which one could prefer an appeal before the High Court against an order of the CLB was 120 days (60 days + 60 days). Section 10F is reproduced as under: "10F. APPEALS AGAINST THE ORDERS OF THE COMPANY LAW BOARD Any person aggrieved by any decision or order of the Company Law Board may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order : Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days." (Emphasis supplied) 40. What is evident from the aforesaid is that, during the period between 12.09.2013 and 01.06.2016, it was the CLB which was the adjudicating authority....
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.... the Act, 1963, which more often than not, come to the aid of the litigant, would remain inaccessible to persons pursuing remedies before quasi-judicial bodies. 44. This general and universal rule that the Act, 1963 only applies to 'civil courts' was expounded in the decision of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Courts, Hubli and Others reported in (1969) 1 SCC 873 which was concerned with applications made by workmen, before the Labour Court, under Section 33-C(2) of the Industrial Disputes Act, 1947. The aforesaid legislation did not expressly make the provisions of the Act, 1963 applicable to Labour Courts. However, one of the pleas raised was that the applications under Section 33-C(2) were time-barred in view of Article 137 of the Schedule to the Act, 1963. The aforesaid plea came to be rejected and a two-fold reasoning was assigned - (a) that the provisions of the Act, 1963, more specifically, Article 137, would only govern applications made under the CPC; and (b) At the very least, it was stated that Article 137 is only concerned with those applications which are presented to a "court" as understood in the strictes....
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....e schedule, including Article 181 of the Limitation Act of 1908, governed applications under the Code of Civil Procedure only, it clearly implied that the applications must be presented to a court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included within the third division by amendment of Articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil Procedure. At best, the further amendment now made enlarges the scope of the third division of the schedule so as also to include some applications presented to courts governed by the Code of Criminal Procedure. One factor at least remains constant and that is that the applications must be to courts to be governed by the articles in this division. The scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than courts, such as a quasi-judicial tribunal, or even an executive authority. An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil Pr....
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....ing the definition of "applicant" in Section 2(a) of the new Act so as to include even a petitioner and the word "application" so as to include a petition. The question still remains whether this alteration can be held to be intended to cover petitions by a petitioner to authorities other than Courts. We are unable to find any provision in the new Limitation Act which would justify holding that these changes in definition were intended to make the Limitation Act applicable to proceedings before bodies other than Courts. We have already taken notice of the change introduced in the third division of the Schedule by including references to applications under the Code of Criminal Procedure, which was the only other aspect relied upon by the Bombay High Court in support of its view that applications under Section 33-C of the Act will also be governed by the new Article 137. For the reasons we have indicated earlier, we are unable to accept the view expressed by the Bombay High Court; and we hold that Article 137 of the Schedule to the Limitation Act, 1963, does not apply to applications under Section 33-C(2) of the Act, so that the previous decision of this Court that no limitation is p....
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.... Article 137. The relevant observations are reproduced hereinbelow: "18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. -xxx- ....
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.... principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other articles in Part I of the third division. This Court in Nityananda Joshi case has rightly thrown doubt on the two-Judge Bench decision of this Court in Athani Municipal Council case where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word "applications". These petitions and applications can be under any special Act as in the present case. 22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case [(1969) 1 SCC 873 : (1970) 1 SCR 51] and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition i....
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....ourt in M.P. Steel (supra), wherein this issue was put to rest and it was stated as follows: "19. [...] On a plain reading of the provisions of the Limitation Act, it becomes clear that suits, appeals and applications are only to be considered (from the limitation point of view) if they are filed in courts and not in quasi-judicial bodies. -xxx- 21. [...] The question in this case is whether the Limitation Act extends beyond the court system mentioned above and embraces within its scope quasi-judicial bodies as well? 22. A series of decisions of this Court have clearly held that the Limitation Act applies only to courts and does not apply to quasi-judicial bodies. [...]" (Emphasis supplied) 51. On a reading of the aforementioned decisions, it can be stated, without doubt, that the provisions of the Act, 1963 (provisions that lay down a prescribed period of limitation as well as Sections 4 to 24 of the Act, 1963 respectively) would only apply to suits, applications or appeals which are made under any law to 'courts' and not to those made before quasi-judicial bodies or tribunals, unless such quasi-judicial bodies or tribunals are speci....
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....an application under this section shall be subject to revision by the High Court, as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, 1908." 5. It would appear that the High Court of Gujarat has taken a consistent view that, by operation of sub-section (3), as the Collector was designated to be a court subordinate to the High Court under Section 115, Civil Procedure Code (for short "CPC"), Section 5 of the Limitation Act (26 of 1963) stands attracted. Though sub-section (3) of Section 18, by virtue of local amendments, treated the Collector as court for a limited purpose of exercising revisional jurisdiction under Section 115, CPC to correct errors of orders passed by the Collector under Section 18, he cannot be considered to be a court for the purpose of Section 5 of the Limitation Act. Section 5 of the Limitation Act stands attracted only when LAO acts as a court." (Emphasis supplied) 55. Another decision of this Court in Prakash H. Jain v. Marie Fernandes (supra) reported in (2003) 8 SCC 431 which was also concerned with the condonation of delay by a statutory authority, observed as....
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....urt only for limited and specific purposes, cannot make it a court for all or any other purpose and at any rate for the purpose of either making the provisions of the Limitation Act, 1963 attracted to proceedings before such competent authority or clothe such authority with any power to be exercised under the Limitation Act. It is by now well settled by innumerable judgments of various courts including this Court, that when a statute enacts that anything shall be deemed to be some other thing the only meaning possible is that whereas the said thing is not in reality that something, the legislative enactment requires it to be treated as if it is so. Similarly, though full effect must be given to the legal fiction, it should not be extended beyond the purpose for which the fiction has been created and all the more, when the deeming clause itself confines, as in the present case, the creation of fiction for only a limited purpose as indicated therein. Consequently, under the very scheme of provisions enacted in Chapter VIII of the Act and the avowed legislative purpose obviously made known patently by those very provisions, the competent authority can by no means be said to be "court"....
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....cision of this Court in M.P. Steel (supra) to submit that the principles underlying Section 5 of the Act, 1963 must nevertheless be made applicable to statutory authorities or quasi-judicial bodies, we must see if the decisions of this Court in Officer on Special Duty (supra), Prakash H. Jain (supra) and Om Prakash (supra) still hold good. c. Whether the principles underlying certain provisions of the Act, 1963 could be made applicable to quasi-judicial bodies or tribunals. 59. We are aware that although the provisions of the Act, 1963 per say have been made inapplicable to applications or appeals before quasi-judicial bodies, yet the principles underlying the provisions of the Act, 1963, more specifically Section 14 thereof, have been made applicable to applications or appeals made before quasi-judicial bodies. This aspect of applying the principles underlying Section 14 of the Act, 1963 was discussed in Parson Tools (supra). 60. Although the decision in Parson Tools (supra) did not apply the principles underlying Section 14 of the Act, 1963 to the facts of their case, based on how the concerned provision i.e., Section 10 of the U.P. Sales Tax Act, 1948, was phrased, yet ....
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....ed by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the statute concerned continues to be the stated period and not more than the stated period. We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case." (Emphasis supplied) 63. In contemplating whether the aforesaid decisions in Parson Tools (supra) and M.P. Steel (supra) which relate to applying the principles underlying Section 14 of the Act, 1963 to provisions which pertain to quasi-judicial bodies, could also be resorted to in the present case, we must take forward the distinction between Section 5 and Section 14 of the Act, 1963 respectively which was alluded to in M.P. Steel (supra). This is because we are concerned with whether the principles underlying Section 5 of the Act, 1963, could be applied to provisions relating to quasi-judicial bodies in the same manner as that of Se....
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....rovision contemplates is the "extension" of the prescribed period of limitation and not the exclusion of it. 68. It is also well-established that the term "sufficient cause" under Section 5 must not be subject to undue rigidity and must be construed in a manner such that it can be contextualised in the facts and circumstances of each case. In other words, it must be kept sufficiently flexible and not be subject to an exhaustive set of circumstances or reasons. Courts must adopt a liberal and justice-oriented approach in assessing whether sufficient cause is made out. While there exists some outer boundaries within which the term "sufficient cause" must be construed, yet it is no doubt true that a significant amount of leeway is given to courts which are faced with an application under Section 5 of the Act, 1963 to ascertain whether the reasons assigned qualify the subjective test of the words "sufficient cause". 69. Furthermore, the use of the words "may be admitted" in the substantive part of the provision indicates that the power which is vested with the court to admit an appeal or an application after the prescribed period, upon sufficient cause being established, is discr....
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....ith defect of jurisdiction." 71. The marginal note to Section 14 reads - "Exclusion of time of proceeding bona fide in court without jurisdiction". Therefore, at first blush, what becomes evident is that the provision is concerned with "exclusion" and not "extension". 72. On a further reading of the aforesaid, one can see that there are certain well-defined pre-requisites that must be satisfied for a party to take benefit of Section 14. Section 14(2) deals with computing the period of limitation for an application and the following are its requisite conditions - First, both the earlier and the subsequent proceedings must be civil proceedings; Secondly, both the earlier and the subsequent proceedings must be before a court; Thirdly, they must be between the same parties; Fourthly, they must be for the same relief; Fifthly, the previous proceedings must have been incapable of being entertained owing to a defect of jurisdiction or any other cause of a like nature; Lastly, the earlier proceedings must have been prosecuted with good faith and due-diligence. 73. Insofar as the second condition referred to above is concerned i.e., that both the earlier and the subsequent proceedi....
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....iples underlying Sections 5 and 14 of the Act, 1963 respectively and erasing the very apparent differences which exist between the two provisions. 77. In this context, it would be apposite to point out that a three-judge bench of this Court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Others reported in (2008) 7 SCC 169 indicated that the principles underlying Sections 5 and 14 of the Act, 1962 respectively, stand on a different footing. It was emphasized that while the power to excuse delay and grant extension of time under Section 5 is discretionary, the power to exclude time under Section 14 is mandatory when the necessary ingredients are fulfilled. Section 5 is much broader in scope because a multitude of reasons could constitute "sufficient cause" for the purpose of condonation or extension. The relevant observations are thus: "28. Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Secti....
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....riod and not more than the stated period.". 80. The effect of the exclusion is, therefore, that, the applicant or the appellant, as the case may be, is placed in a position wherein it is assumed that the abortive proceeding never even occurred in the first place. The law permits such an assumption if the ingredients under Section 14 are satisfied. There arises no question of stretching out the prescribed period of limitation through discretion. It is as though the time during which the abortive proceeding was prosecuted is expunged in the eyes of law. Such an erasure is allowed also because no delay could be said to be attributed to the applicant or the appellant, as the case may be. 81. However, when an extension occurs under Section 5, the delay is, in clear terms, attributed to the applicant or the appellant, as the case may be. It is just that such a delay does not have the consequence of the application or the appeal being disallowed due to the mandate under Section 3 of the Act, 1963. The effect of Section 5 is that the period during which the sufficient cause persisted is not erased in the eyes of law; rather the prescribed period of limitation is discretionarily adjus....
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....an appeal or application, as the case may be, within the prescribed period of limitation. This restoration is based on fixed and well-defined conditions which leaves no room for any exercise of discretion. In other words, Section 14 allows the litigant to file the appeal or the application, as the case may be, as a matter of right by reinstating him on a specific point in the timeline wherein he is entitled to exercise the said right, whereas Section 5 acknowledges that he may not be entitled as a matter of right to file the appeal or the application, as the case may be, but extends time in his favour due to some inherent discretion vested in civil courts. 85. Both provisions work in the interest of the litigant and seek to further the cause of substantive justice, however, the kind and nature of the power exercised under the two provisions, as well as the mechanism envisaged therein, are quite distinct. 86. Another key difference between Sections 5 and 14 of the Act, 1963 respectively was pointed out by the decision of this Court in Sakaru v. Tanaji reported in (1985) 3 SCC 590. While Section 14 pertains to "computation of the period of limitation", Section 5 is a provision ....
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....herwise have been allowed". 89. As we have explained in the preceding paragraphs, such points of identity does not exist vis-á-vis Section 5. 90. In light of all the aforesaid, it is our view that the discretionary power to adjust the period of limitation itself, must be specifically granted to the concerned quasi-judicial body or tribunal and there must be a reasonable indication from the language of the statute that such a discretion which is otherwise vested in civil courts, is also vested in the concerned quasi-judicial body. We can think of two ways in which this can be done: a. Through a proviso or a sub-section in the concerned section stating that the quasi-judicial body can extend time for filing the said appeal or application, as the case may be, upon the satisfaction that sufficient cause existed. To illustrate, such a sub-rule or proviso may read thus - "provided that the Company Law Board may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding 60 days" or "...within a further period of 60 days" or "...wit....
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....concerned. The relevant observations are thus: "56. For the sake of convenience, and to avoid prolixity and unnecessary repetition, all the aforesaid issues are dealt with together. Section 238-A IBC provides that the provisions of the Limitation Act shall, as far as may be, apply to proceedings before the adjudicating authority (NCLT) and Nclat. 57. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates [B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates, (2019) 11 SCC 633 : (2018) 5 SCC (Civ) 528] NCLT/Nclat has the discretion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation." (Emphasis supplied) 92. However, suppose the concerned provision already provides that delay can only be condoned within a maximum outer-limit, then such an outer-limit would have to be harmoniously read wi....
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.... quasi-judicial bodies or tribunals, unless expressly specified, this Court turned its attention to any indication within the statute which could signal that Section 5 of the Act, 1963 was intended to be applied to 'appeals' made before the DRT as well. In doing so, it was observed thus: "13. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribe....
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....ties. One must be careful in ascertaining when there is an unintentional silence and when there exists a deliberate omission. 101. Moreover, this Court in Prakash H. Jain (supra) has already unequivocally stated that there cannot be any inherent power to extend the period of limitation prescribed for the filing of any appeal or application. 102. One could argue that it is the same inherent power which is exercised by a quasi-judicial body or tribunal when it applies the principles underlying Section 14 of the Act, 1963. However, as we have already explained, the principles underlying Sections 5 and 14 of the Act, 1963, could not be said to be on the same footing. 103. With respect to the issue with which we are concerned, we have already established that when the legislature has intended for a quasi-judicial body or a tribunal to apply the provisions of the Act, 1963, more particularly, confer the power of 'extension of time', they have indicated the same in some way or the other, in an express manner. Regulation 44 cannot be resorted to in order to confer a power upon the CLB which the legislature in their wisdom did not intend to confer. 104. To buttress this line of ....
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....must be construed. 108. Section 58 of the Act, 2013 under which provision the respondent herein filed an appeal before the CLB, is reproduced as thus: "58. Refusal of registration and appeal against refusal.-(1) If a private company limited by shares refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any securities or interest of a member in the company, it shall within a period of thirty days from the date on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transfer or and the transferee or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal. (2) Without prejudice to sub-section (1), the securities or other interest of any member in a public company shall be freely transferable: Provided that any contract or arrangement between two or more persons in respect of transfer of securities shall be enforceable as a contract. (3) The transferee may appeal to the Tri....
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....rticular significance to the present matter. It discusses the mechanism which must be adopted or the further course of action available to a transferee who is aggrieved by the decision of private company refusing to register the transfer or transmission of shares. According to Section 58(3), the transferee has to prefer an appeal before the NCLT (or the CLB during the period between 12.09.2013 and 01.06.2016) against the refusal of the company, within a period of thirty days from the date of receipt of the notice of refusal. In case no notice of refusal has been sent by the company, then the transferee has to prefer an appeal within a period of sixty days from the date on which the instrument of transfer or intimation of transmission was delivered to the company. 111. The entire question of how a particular provision of a special statute must be construed, for the purposes of limitation, directly arises as a consequence of the savings provision in the Act, 1963, which reads thus: "29. Savings. - [...] (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisio....
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....icant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." (Emphasis supplied) 115. In the said provision, the prescribed period of limitation for filing an application to set aside an arbitral award is three months. Therefore, if looked at from the lens of Section 29(2) of the Act, 1963, it would mean that instead of applying Article 137 of the Schedule to the Act, 1963 which prescribes a three-year limitation period, one must give priority to the period so specifically prescribed by the legislature under the special act, which is three months. 116. The proviso to Section 34(3) then states that, upon sufficient cause being shown, the application to set aside an arbitral award could be entertained within a further period of thirty days but not thereafter. In light of the language used, what then has to be determined is whether any provision within Sections 4 to 24 of the Act, 1963 was expressly excluded. 117. A reading of the proviso to Section 34(3) reveals that the application of Section 5 of the Act, 1963 has been restric....
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.... of Section 5 shall not be attracted by strength of Section 29(2) of the Act." (Emphasis supplied) 121. M.P. Steel (supra) had also indicated that which was subsequently laid down in Ganesan (supra) and stated that the special or local law referred to in Section 29(2) of the Act, 1963 must concern itself with a suit, application or appeal of the nature described in the Schedule to the Act, 1963 i.e., those that are filed before 'courts'. Therefore, Section 29(2) would not get attracted when the suit, application or appeal referred to in the special law relates to those which are made before quasi-judicial bodies. The relevant observations are thus: "33. [...] A bare reading of this section would show that the special or local law described therein should prescribe for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule. This would necessarily mean that such special or local law would have to lay down that the suit, appeal or application to be instituted under it should be a suit, appeal or application of the nature described in the Schedule. We have already held that such suits, appeals or applications as ....
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....lore this aspect of express exclusion. 125. In light of the aforesaid, we find no merit in the submission put forth by Ms. Arora that even before the coming into force of Section 433 of the Act, 2013, there was no express exclusion of the provisions of the Act, 1963 and therefore, the CLB could be said to have the power under Section 5 of the Act, 1963 to condone the delay in preferring the appeal under Section 58(3) of the Act, 2013. The absence of express exclusion, by itself, cannot be said to have conferred the CLB with the power to condone delay. 126. Having said the above, the next question which arises is regarding how the simpliciter limitation period prescribed under Section 58(3) of the Act, 2013, must be construed? To answer this, we find it apposite to bring forth certain observations made by this Court in Fairgrowth Investments Ltd v. Custodian reported in (2004) 11 SCC 472. The relevant observations are thus: "9. We are of the view that the provision prescribing a time-limit for filing a petition for objection under Section 4(2) of the Act is mandatory in the sense that the period prescribed cannot be extended by the court under any inherent jurisdictio....
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....ed with Sections 4 and 6 of the Limitation Act, 1963. Section 4 of the Limitation Act provides: "4. Expiry of prescribed period when court is closed.- Where the prescribed period for any suit, appeal or application 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." Certain sub-sections of Section 6 of the Limitation Act also provide for the period within which a minor or insane or an idiot may institute suits. It cannot be contended that the word "may" in these sections indicates that the prescribed periods were merely directory. This Court in Mangu Ram v. Municipal Corpn. of Delhi [(1976) 1 SCC 392 : 1976 SCC (Cri) 10] described statutory provisions of periods of limitation as "mandatory and compulsive" and also said: (SCC p. 397, para 7) "It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 (of the Limitation Act) in order that the application may be entertained despite such bar." 12. If the power to condone delay were....
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....th (supra), we are also of the view that the use of this word does not directly give rise to any inference that the limitation period prescribed therein is only directory. 129. Therefore, the respondent herein must have preferred his appeal under Section 58(3) of the Act, 2013 before the CLB, strictly within the time-limit prescribed therein. III. Whether Section 433 of the Act, 2013 must be made retrospectively applicable or the change in law during the pendency of the appeal must be taken into account in the facts and circumstances of the present case? 130. As indicated previously, Section 433 of the Act, 2013 was brought into force w.e.f 01.06.2016 i.e., from the same date on which the NCLT and the NCLAT respectively came to be constituted. In the phased manner of implementation of the provisions of the Act, 2013, such a decision to time the coming into force of Section 433 in a way that coincides with the creation of the NCLT and NCLAT respectively, was clear and conscious. This, by itself, is a good indication to steer away from the retrospective application of Section 433 in favour of the CLB. 131. Further, in the course of our initial discussion on whether the pr....
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....nserted through the Amendment Act of 2018 with effect from 06.06.2018 could be said to have retrospective application from the date of commencement of the IBC, 2016 i.e. from 01.12.2016. In examining the reason behind the introduction of Section 238-A, it was culled out that the legislature had always intended for the Act, 1963 and the rules of limitation to apply to the IBC, 2016, especially with respect to the applications filed under Sections 7 and 9 of the IBC, 2016 respectively. In other words, the issue therein related to the retrospective application of the provision of an amending Act which was clarificatory in nature. 136. It is also of note that in B.K. Educational Services (supra), in the period between 01.12.2016 and 06.06.2018 i.e., the period for which retrospective application was sought, it was still the NCLT that was hearing applications under Sections 7 and 9 of the IBC, 2016 respectively. To put it simply, it was not a case wherein a different body was adjudicating the applications filed under Sections 7 and 9 respectively during 06.06.2018 and 01.12.2016. The issue was simple - when the NCLT was explicitly empowered to apply the provisions of the Act, 1963 on....
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....e insofar as they apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier, but they are prospective in the sense that they neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have the effect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation, 5th Edn. (2008), p. 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. -xxx- 32. Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acqui....
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.... regime. 144. The facts and circumstances of the present case are slightly different from that in Thirumalai Chemicals (supra). As aforementioned, the newer law of limitation which is applicable to the matter cannot revive a dead remedy. In the facts of our case, the appellant company issued its notice refusing to register the transmission of shares on 30.04.2013 i.e., during a time when the regime under the Erstwhile Act was in vogue. More specifically, it was Section 111(2) r/w Section 111(3) of the Erstwhile Act which governed the field. According to those provisions, the respondent herein must have preferred an appeal before the CLB within a period of two months from the date of the notice of refusal i.e., before 30.06.2013. It is not in dispute that the respondent failed to file such an appeal before 30.06.2013. There existed no power to condone delay with the CLB during this period. Therefore, the remedy under Section 111(2) r/w Section 111(3) of the Erstwhile Act was already dead, much before the coming into force of Section 58 of the Act, 2013 on 12.09.2013 let alone the coming into force of Section 433 of the Act, 2013 on 01.06.2016. 145. Hence, in such a scenario, i....
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.... be a 'court' for the purposes of the Act, 1963 and more specifically, for the purpose of condonation of delay/extension of time. 151. Secondly, the impugned decision has also placed considerable reliance on the Division Bench decision of the Calcutta High Court in Nupur Mitra (supra). Therein, the CLB was faced with an application under Section 111(4) of the Erstwhile Act for the rectification of the register (corresponding to Section 59 of the Act, 2013) and was not dealing with an appeal against the refusal to register the transfer or transmission of shares under Section 111(2) r/w Section 111(3) of the Erstwhile Act (corresponding to Section 58 of the Act, 2013). 152. This difference is crucial because under Section 111(4) of the Erstwhile Act and Section 59 of the Act, 2013, there is no period of limitation which has been prescribed by the legislature. In other words, the making of an application for the rectification of register under both the Erstwhile Act and the Act, 2013 is not bound by a specific time-limit. On the other hand, under Section 111(2) r/w Section 111(3) of the Erstwhile Act and Section 58(3) of the 2013, Act, there is a specific period within which an ....
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.... the receipt of an appeal thereunder after the expiry of the time-limit indicated therein. Insofar as the aforesaid two-pronged reasoning is concerned, we have already explained as to how the principles underlying Section 5 of the Act, 1963 stand on a different footing and also that the use of any additional pre-emptory language should not always be a requirement to read the prescribed period of limitation as mandatory. Therefore, we are unable to agree with the views expressed in Mackintosh (supra). 157. The decision in Mackintosh (supra) was challenged by way of an SLP before this Court in Mackintosh Burn Ltd. v. Sarkar and Chowdhury Enterprises Private Limited reported in (2018) 5 SCC 575. However, the main issue canvassed was whether the High Court must have decided the other questions of law which was raised in the statutory appeal, apart from the question of limitation. This Court answering in the affirmative stated that the High Court must have considered all the grounds taken by the appellant justifying their refusal to register the shares in favour of the respondent and not restricted itself to the sole question of whether the CLB could have received the appeal under Se....
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....e before quasi-judicial bodies or tribunals, unless such quasi-judicial bodies or tribunals are specifically empowered in that regard. iv. In Officer on Special Duty (supra), Prakash H. Jain (supra) and Om Prakash (supra) respectively, this Court has unequivocally held that the power to extend time under Section 5 of the Act, 1963 cannot be resorted to by statutory authorities, quasi-judicial bodies or tribunals, unless expressly indicated. It has been clarified that when such authorities or bodies are deemed to be a court for certain limited or specified purposes, such a legal fiction must not be extended beyond the purpose for which the fiction was created so as to confer powers under Section 5 of the Act, 1963 as well. v. In Parson Tools (supra) and M.P. Steel (supra) respectively, this Court has developed a body of jurisprudence indicating that the principles underlying Section 14 of the Act, 1963 could be applied to the provisions relating to quasi-judicial bodies, unless there is any express indication to the contrary in the wording and scheme of the said provision. However, there exists a vital distinction between the principles underlying Sections 5 and 14....
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.... the Act, 1963 through a separate provision to the special law as a whole (akin to Section 433 of the 2013, Act). x. Therefore, the decision of this Court in M.P. Steel (supra) would not apply analogously to a situation when the principles underlying Section 5 of the Act, 1963 are sought to be applied by quasi-judicial bodies which aren't empowered in that regard. xi. Regulation 44 of the CLB Regulations which saves the inherent power of the CLB would not enable the CLB to extend time for the filing of the appeal or the application itself, as the case may be. xii. In Ganesan (supra), it has been settled that the savings provision in the Act, 1963 i.e., Section 29(2), is of no relevance when the special or local law deals with a suit, appeal or application, as the case may be, which is to be filed before a quasi-judicial body. The question whether a certain provision in a special or a local law expressly excludes the provisions of Sections 4 to 24 of the Act, 1963 respectively arises only in pursuance of the savings provision under Section 29(2) of the Act, 1963. As a natural corollary, if Section 29(2) is, by itself, inapplicable to a particular case then....