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2012 Supreme(Online)(KER) 4921
HIGH COURT OF KERALA
K.HEMA, P.S.GOPINATHAN, JJ
S R KALYANAKRISHNAN – Appellant
Versus
GREEN CITY HERITAGE P LTD – Respondent
COMPANY APPEAL 14/2012
A delay in filing an appeal requires sufficient justification; mere decision-making time does not suffice to condone delays in company proceedings.
Headnote:
Delay - Company Appeal - Company Act Section List - The court interpreted the provisions surrounding condonation of delay, specifically sections relating to company petitions and appeals. The court emphasized the necessity for sufficient reasons for delay and upheld that existing resolutions could provide ample opportunities for disputes to be raised later.
Fact of the Case:
The petition was filed to condone a delay of 66 days in filing a Company Appeal challenging a learned Single Judge's order. The appellant, representing depositors, claimed meetings were held to decide the appeal, leading to the delay.
Finding of the Court:
The court found the reasons cited for delay insufficient, concluding that prior resolutions and actions taken justified rejecting the condonation. The court highlighted the need for urgency due to forthcoming meetings.
Issues: Whether the reasons provided for the 66-day delay in filing the appeal are sufficient for condonation.
Ratio Decidendi: The court ruled that the reasons articulated by the appellant did not warrant the condonation of delay, reiterating that procedural compliance in company applications is crucial.
Final Decision: The petition for condonation of delay and the appeal were both dismissed.
J U D G M E N T
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Hema, J.
This petition is filed to condone the delay in filing the Company Appeal. The appeal is filed challenging the order dated 3.7.2012 passed by the learned Single Judge in Co.Appln.Nos.340 and 691/2011 in C.P.No.41/2009. The appellant is admittedly not a party to the present case. Hence he sought for leave of the court to file appeal and leave was also granted.
2. There is a delay of 66 days in filing the appeal and hence notice was given to the respondents and all of them entered appearance except 7th respondent. The appellant/ petitioner and the respondents 1 to 6 were heard in detail. The reason for the delay is stated specifically in paragraph 4 of the affidavit as follows:
“4. The appellant is the President of Business India Investment Forum representing more than 700 depositors, Co.A.No.14/2012 2 which was formed to protect the interest of the depositors. Subsequent to the order passed by the learned Single Judge, meetings were convened to decide the future course of action. The depositors are from various districts and it took time to take a decision to file appeal against the impugned order. The Company Appeal ought to have been filed on or before 3.8.2012. Hence there occurred a delay of 66 days in filing the appeal. The delay happened due to the aforesaid reasons. There is no laches or negligence on the part of the appellants or counsel in not filing the appeal in time.”
3. Respondents 1 to 3 filed a counter affidavit stating that there is no bonafides in filing the appeal and sufficient reasons are not stated for condoning the delay. Various other contentions are also raised in the counter affidavit. It is also the contention of the respondents that the validity of the proposed schemes can be considered only after the meetings are convened, as held by the Supreme Court in the various decisions. The meetings are sought to be convened tomorrow (18.10.2012) and also on 20.10.2012 and the delayed appeal is filed without any bonafides, it is submitted.
Co.A.No.14/2012 3
4. On hearing both sides and on going through paragraph 4 of the affidavit filed along with the delay petition, it can be seen that the only reason stated by the petitioner is that subsequent to the impugned order, meetings were held to decide future course of action and it took time to take a decision as to whether appeal has to be filed against the impugned order. The time taken for taking a decision whether appeal is to be filed or not is, apparently no reason at all to condone the delay.
5. However, our attention was drawn to the merits of the case by both sides to certain extent. Learned counsel for the appellant submitted that the impugned order is not sustainable, since the company applications are not filed in the proper forum. Rule 67 is not complied with, and the Judges Summons is not prepared in accordance with the language in Form 33, it is submitted. It is also submitted that an independent application is to be filed under Section 391 , but the Co.Appln.No.340/2011 is filed as an interim petition filed under the main Company Petition filed under Section 433. Therefore, the impugned order is liable to be set aside, it is submitted.
Co.A.No.14/2012 4
6. On the other hand, the respondents would submit that the requirements under Rule 67 are complied with though the Judges Summons is referred to as filed under Rule 11(b). There is also no merit in the contention that a separate petition is to be filed under Section 391 , it is submitted.
7. On hearing both sides and on going through the records produced along with this petitions, it can be seen that Co.Appln.No.340/2011 was filed with a prayer to accept the scheme of arrangement/ Reorganisation/ Compromise of 5th respondent Company in this appeal and for compromise with secured and unsecured creditors of 5th respondent Company and for that purpose, to pass orders for convene meetings of the shareholders and secured and unsecured creditors of 5th respondent. Co.Appln.No.691/20
