IMPORTANT POINT
Section 5 of the Limitation Act cannot apply to section 421(3) of Companies Act, 2013.

JUDGMENT :

R.F. Nariman, J.

1. The present appeal is against an order of the National Company Law Appellate Tribunal dated 31.07.2017 by which the Appellate Tribunal, after setting out Section 421(3) of the Companies Act, 2013, (for short 'the Act') has dismissed the appeal as not maintainable, inasmuch as the appeal has been filed 9 days after the period of limitation of 45 days has expired and a further period of another 45 days has also expired.

2. Mr. Jayant Mehta, learned counsel appearing on behalf of the appellant, has argued the matter persuasively before us.

He points out that Section 421(3) of the Act does not contain the language of Section 34(3) proviso of the Arbitration Act, 1996 which contains the words “but not thereafter” which Union of India vs. Popular Construction Co. (2001) 8 SCC 470 considered. He further points out that, in any case, 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. He has buttressed his submission by referring to various decisions of this Court.

3. Before coming to the judgments of this Court, it is important to first set out Section 421(3) and Section 433 of the Act. These provisions read as follows:

“421. Appeal from orders of Tribunal.-

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(3) Every appeal under sub-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.

433. Limitation.-The provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be.”

4. A cursory reading of Section 421(3) makes it clear that the proviso 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 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.

5. 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. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of learned counsel for the appellant. If we were to accept such argument, 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.

6. We are fortified in this conclusion by the judgment of this Court in Chhattisgarh SEB v. Central Electricity Regulatory Commission, 2010 (5) SCC 23. The language of Section 125 of the Electricity Act, 2003, which is similar to the language contained in Section 421 (3) of the Companies Act, 2013, came up for consideration in the aforesaid decision. The issue that arose before this Court was whether Section 5 of the Limitation Act can be invoked for allowing the